^>, 


^0^.\^^<^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-S) 


/ 


o 


'm 


"^ 


1.0 

■^  m    1  2.2 

I.I 

l'-8 

1.25 

1.4    1  1.6 

l|S== 

6"     

V] 


<^ 


/i 


% 


"^ 


J^ 


# 


/i 


? 


Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  14580 

(716)  872-4503 


vim!^-9V  v>  'JiBs^asftEvat*! 


ii^ 


L<? 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute 


for  Historical  IVIicroreproductions  /  Instltut  Canadian  de  microreproductions  historiques 


■M 


a/tt^sm-- 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibllographlques 


The  Institute  has  attempted  to  obtain  the  best 
original      ;^y  available  for  filming.  Features  of  this 
copy  which  may  be  bibllographically  unique, 
which  may  alter  any  of  the  Images  In  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


D 
D 
D 

D 
D 
D 
D 
D 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 
Couverture  endommag^e 

Covers  restored  and/or  laminated/ 
Couverture  restaurAe  et/ou  pelllcul6e 

Cover  title  missing/ 

La  titre  de  couverture  manque 

Coloured  maps/ 

Cartes  g6ographlques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  biack)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  Illustrations/ 
Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Reli6  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

La  reliure  serrie  peut  causer  de  I'cmbre  ou  de  U< 
distortion  le  long  de  la  marge  int^rieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajouties 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  dtalt  possible,  ces  pages  n'ont 
pas  6t6  film6es. 

Additional  comments:/ 
Commentaires  suppl6mentaires; 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vuo  bibliographlque,  qui  peuvent  modifier 
une  Image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m6thode  normale  de  filmage 
sont  Indiqu6s  ci-dessous. 

□   Coloured  pages/ 
Pages  de  couleur 

□    Pages  damaged/ 
Pages  andommagdes 

I — I    Pages  restored  and/or  laminated/ 


D 


Pages  restaur6es  et/ou  peilicul^es 

Pages  discoloured,  stained  or  foxei 
Pages  d^colortes,  tachet6es  ou  piqu6es 

Pages  detached/ 
Pages  d^tjcnees 

Shov\fthfc»jyh> 
Transpas-'iiii^s 

Quality  tf  prir 

Qualltii  in^gale  de  I'impression 

Includes  supplementary  materii 
Comprend  du  materiel  supplimentaire 

OrJy  edition  available/ 
Seule  MItlon  disponlbie 


I — I  Pages  discoloured,  stained  or  foxed/ 

I — I  Pages  detached/ 

I      I  Shov\fthfc»jyh/ 

I — I  Quality  tf  print  varies/ 

I — I  Includes  supplementary  material/ 

I — I  OrJy  edition  available/ 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  ref limed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcles  par  un  feulllet  d'errata,  une  pelure, 
etc.,  ont  6t6  filmies  A  nouveau  de  fa9on  d 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmd  au  taux  de  reduction  indlqu«  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

30X 

J 

■i^HUM 

19X 

16X 

20X 

'24X 

28X 

32X 

,,>iMil»iWBiMrii«MMiWllii  WHiiWMl 


^^ 


B 

I 

fier 

e 


ita 


lure. 


: 


2X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Library  of  Congress 
Photoduplication  Service 

The  imrges  appearing  here  are  the  bdst  C|uallty 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — )►  (meaning  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


1    t    ^ 

1- 

a 

3 

L'exemplaire  film6  fut  reproduit  grdce  d  la 
gAn6rosit6  de: 

Library  of  Congress 
Photoduplication  Service 

Les  images  suivantes  ont  6X6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
da  la  nettet6  de  I'exemplrire  film6,  et  en 
conformlt6  avec  les  conditions  du  contrat  de 
filmage. 

Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  <mprim6e  sont  filmds  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  axemplaires 
originaux  sont  film6s  en  commenpant  par  la 
pramidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  teile 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symboie  -^  signif ie  "A  SUIVRE  ",  le 
symbole  V  signifie  "FIN  ". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
film6s  d  das  taux  de  reduction  diffdrents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clichd,  il  est  f  ilm6  d  partir 
de  Tangle  supirieur  gauche,  de  gauche  d  droite, 
et  de  haut  an  bas,  en  prenant  le  nombre 
d'images  nicessaire.  Les  diagrammes  suivants 
Miustrent  la  m6thode. 


i    '^  ■ 

2 

3 

4 

5 

6 

^•(•mimimisntttmimmmtmmmt 


Itejfc^V**'^***""'!*'' ' 


IMa«t.\M^.l»4U 


i^ala 


THE  CIVIL  REMEDY 


—FOB — 


INJURIES  ARISING  FROM  THE  SALE  OR  GIFT 


—OF — 


INTOXICATING  LIQUORS. 


< » 


BY  JOHN  D>  LAWSON, 

CorNSELOB  AT  I.AW. 


ST.  LOUIS: 
THE  CENTRAI^  LAW  JOURNAL. 

1877. 

9^ 


? 


3^ 


<=<b 


V' 


^^ 


Entereil  according  to  Act  of  Congress,  in  the  year  1877,  by 

Jons  D.  Lawson-, 
In  tne  office  of  llie  Librarian  of  Congress  at      .aliington. 


/. 


-3^^fi 


MAYNARD  &  TIIOMPSOH,  LA.V  I'lltHrERS. 
ST.   LOUIS. 


^iia 


y^^ 


THE  CIVIL  REMEDY  FOK  INJURIES 


AltlSlNO    FROM   THE 


SALE  OE  GIFT  OF  INTOXICATING  LIQUORS. 


SECTION  1.  Introduction-The  Statutory  Kemedy. 

SEC    2.   The  LawH  of  Maine,  Connox-tlcut,  Indiana  and  Xew  Hampsl.iro. 

Sec.  3.  The  Laws  of  Illinois,  Iowa,  Kansas,  Michigan.  Xew  \oik,  Ohio 

and  Wisconsin. 
Sec.  4.   Who  Liahle-Master  and  Servant-Principal  and  Agent. 
Sec'.  5.   IHie  .Joint  Liability  of  Several  Sellers. 
Sec.  6.   The  Liability  of  Owners  or  Lessors  of  Premises. 
Sec.  7.   Injuries  to  the  Person. 
Sec.  8.   Injuries  to  Property. 
SEC  9.   Injuries  to  Means  of  Support-llights  of  W  ife. 

Sec.  10.  Actual  and  Exemplary  Damages. 

Sec.  11.  Pleading— Limitation. 

Sec.  12.  Evidence.— What  Acts  will  Bu.  a  Recovery. 

Sect'ON  1.  Introduction— The  /Statutory  Remedy.     The 
folUnviiu^  discussion,  relative  to  the   traffic  in  intoxicating 
liduors,  will  be  restricted  to  a  consideration  ot   the  civil 
remedy  given  in  many  of  the  states  for  injuries  resulting 
from  the  sale  or  gift  of  such  commodities.  It  is  not  proposed 
that  this  shall  be  an  argument,  either  in  favor  of  or  against 
the  liciuor  trade.     The  sale  of  intoxicating  liquors  is,  at  com- 
mon law,  as  lawful  and  as  unrestricted  as  the  sale  of  dangerous 
weapons  or  of  poisonous  drugs.     But  in  this  country,  there 
has,  within  recent  years,  grown  up  a  deep-seated  prejudice,  or 
iie-rfmps  to  speak  more  correctly,  an  honest  and  sincere  sen- 
timent against  this  particular  kind  of  commerce,  which  can 


4  INTOXICATINO    LIQUOU8. 

hiirdly  bo  said  to  l)o  the  outgrowth  of  any  party  or  oi  any  avvt. 
The  iulvonitt's  of  this  idea,  liaving  in   sonic  states  become 
powerful  enough  to  o])tain  temporary  possession  of  the  h'g- 
ishiturcs,  have  proceeded  to  prohil)it  its  sak*,  either  entirely 
or   under  extraordinary   restraints;  to   treat   the  trade    in 
spirits  as  an  outlaw,  and  as  an  enemy  to  society  and  good 
government.     In  other  states,  and  still  more  recently,  its 
supporters  have  liecome  sutiieiently  imprudent  and  ill-ad- 
vised, to  set  the  law  ut  defiance,  under  the  form  of  a  mod- 
ern crusade,  thus  retarding  the  advancement  of  their  own 
opinions,  by  making  those  whom  they  regard  as  the  ene- 
mies of  sobriety  and  good  morals  the  victims  of  injustice,  and 
themselves  the  disturbers  of  the  peace  and  of  law  and  or- 
der.    The  ditlerence  between  the  rumseller  who  vends  his 
wares  in  violation  of  law,  and  the  prohibitionist  who  seeks  to 
prevent  him  by  conspiracy  and  riot,  is  certainly  very  sliglit ; 
and  it  wonkl  seem  that  the  latter  has  come    to  recognize 
the  fact,  that  public  opinion  Avill  not  sustain  ovon  a  merito- 
rious object  if  sought  to  be  attained  by  illegal  means.     It  is 
more  tlian  probal>le  that  the  advocates  of  prohibitory  laws 
may  never  be   successful.     There    are    two  considerations 
against  which  they  are  waging  an  almost  hopeless  war,  the 
one  without  which  a  government    can  hardly  endure,  the 
other  with  which  we  do  not  desire  to  pail  even  in  the  least 
— revenue  and  liberty. 

The  laws,  whi-h  are  the  subject  of  this  review,  Rre  open  to 
no  sui!h  objection  ;  and  that  they  have  been  adopted  in  but 
eleven  states,  is  at  least  singular.  In  the  enactment  of 
the  statutes  giving  a  right  of  action  for  damages  caused  by 
the  sale  of  intoxicating  liquors,  the  legislatures  have  not 
sought  to  interfere  with  their  sale,  but  have  endeavored  to 
give  redress  and  compensation  for  damages  actually  inflicted 
l)y  one  person  and  sufl'ered  by  another,  in  cases  where  no 
remedy  was  to  be  had  under  the  law  as  understood  and 
administered  in  the  courts.^  The  seller  ot  intoxicating 
liquors  is  made  responsible  for  the  injurious  results  of  his 

1  Bedore  v.  Newton,  34  N.  II.  117 ;  s.  c,  2  Cent.  L.  J.  363. 


iirtyor  oi  anysi'i't. 
line  statcH  become 
session  of  the  leg- 
ale, either  entirely 
reat   the  trade   in 
)  society  and  good 
more  recently,  it* 
)rudcnt  and  ill-ad- 
10  form  of  a  niod- 
aient  of  their  own 
re<rard  as  the  ene- 
ns  of  injustice,  and 
md  of  law  and  or- 
der who  vends  his 
ionist  who  seeks  to 
rtainly  very  slight ; 
•ome    to  recognize 
tain  oven  a  nierito- 
llejial  means.     It  is 
of  prohibitory  laws 
two  considerations 
t  hopeless  war,  the 
lardly  endure,  the 
nl  even  in  the  least 

review,  Pire  open  to 
)een  adopted  in  but 
1  the  enactment  of 

damages  caused  by 
ffislatures  have  not 
have  endeavored  to 
^es  actually  inflicted 
,  in  cases  where  no 

as  understood  and 
ler  ot  intoxicating 
irious  results  of  his 

;.  L.  J.  363. 


INTOXICATING    LIQUOUS.  •» 

.sales    on    the  same  princii)le  as  common  carriers,   bailees 
a'n.l   a.'ents   are  liable   for  the    negligent    conduct    of  their 
ari'iir-*^    The  statutes  but  extend  a  well-known  principle 
of'the  common  law,  that  one  shall  be  held  to  strict  aci-ount 
for  the  consequences  of  iiis  acts,  and  the  application  ot  an 
iuuient  maxim  that  there  is  no  wrong  without  its  appn.priate 
remedy.     The  traftic   itself  is   not    restricted.     The   dealer 
may  sell,  if  he  so  desires  ;  Imt  he   is  re(,uircd  to  be  <-areful 
to  whom  he  sells,  not  to  sell  enough  to  cause  intoxication, 
nor  to  a  person  whcmi  he  knows  to  be  in  the  habit  ot  be- 
c(.min.r  intoxicated  and  wasting  his  own  and  his  family'^ 
propeitv,  nor  to  add  to  an  intoxication  already  commenced, 
nnd  the\-onse(,uences  of  which  he  may  reasonably  foresee^ 
The  law  does  not  sav  you  must  not  deal  in  such  wares.     It 
mys:  "You  mav  legally  soil,  but  if  what  you  sell  pro- 
du'ees  intoxication  and  consequent  damages,  you  must  pay  ; 
if  you  sell  to  any  one  who  is  intoxicated,  or  wno  will  use  it 
to  become  so,  you  nmst  take  the  risk  of  damages ;  you  may 
do  the  le.ral  act,  but  you  must  do  it  in  a  proper  manner. 
An  owner  is  not  prevented  from  renting  his  premises  tor 
the   purpose   of  licpior  selling;   but  he  is   reipured  to  see 
that  he  rents  them  to  persons  who  will  so  carry  on  their 
business,  that  no  one   shall   be   injured    in  person,  prop- 
erty or  means  of  support,  by  reason  of  such  sales.     It  is 
recpiired  of  the  owner,  who  alone  has  the  power  to  select 
his  tenant,  that  he  shall  assume  the   risk  ot  his   tenant  s 
acts  in  the  business  of  selling  intoxicating  liquors.*     It  is 
hardly  necessary  to  say  that  such  an  action  is  purely  the 
creature    of  the   statutes.      The   familiar  doctrines  ot  the 
common  law  allowed  of  no  such  remedy,  on  account  ot  the 
remoteness  of  the  injury.* 

The  constitutionality  of  these  acts  has  been  more  than 
once  raised,  but  without  exception   they  have  been    sus- 

2Bertholf  V.  O'Reilly.  8  Hun.  18.^ 

3  Jackson  V.  Brookiiis,  5  Hun,  535. 

4Bertholtv.  O'Reilly,  supra.  ......   n  ,,   oi 

.^  Dillon  V.  Linder,  36  Wis.  344;  Struble  v.  Nodwift,  11  Ind.  04 


*  • 


6 


INTOXICATING    MQUOUS. 


tiiinctl."     It   liiis  lu'cn  settled  tliiil  tlie  v'v^hi  t(t  soil  intoxieii- 
tiiiir  rKiuors  is  not  one  of  the  pvivileu'es  and    iinniimities  ol 
eitrzeiis    of  the    \Jn\\ri\    Sti.tes.    uhieh,    b.V    the    touilreiitil 
imieiKliiieiit  to  the  Constitution,  the  states  are  forbidden  to 
ahrid,i><'.     The  lefrislaiui-'  has  a  riiiht  to  proliil)!!  the  sellin.ir 
of  articles  which  are  considered  injurious  to  society.'     The 
,,nestion  is  donl)tful  only,  when  such  prohibitions  interfere 
with    the   vested    rij-hts    of  property.     This    (piestion    was 
raised   in   the   Supreme  (\.nrt    of  the  United   States  in  the 
ease  last  cited,  but  not   decided,  on  the  frrouml  that  it  was 
not  properly  presented   in  the  record.     But  from  the   ex- 
pressions   of  the  Judsics  who  delivered   opinions    then,   it 
would  sc.«m  that  such  rijihts  in  property,  even  when  stand- 
in?.'  in  the  way  of  the  pul)lic  -rood,  can  be  divested  only  l)y 
awardinji-    proper   compensation    to    the    owner.       But  the 
(|uestion'",    as    it    arises    under   the    damage   acts,    presents 
wholly  ditferent  features.     Under  these  acts,  no  property  is 
taken'  awav  ;  only  the  use  of  a  license  is  interfered   with, 
and  such  a  re<.nd"ation  can  not  be  said  to  ditfer  essentially 
from   the  provisions    of  the  excise    laws    forbiddin.n  sales 
to    minors   or  on   Sunday.      As   the  vi<;ht   of   the  legisla- 
ture to  restrain  the   sale  of  li((Uors  is  un(iuestionable,  the 
person   taking   a    license    is    sul)iect   to    all    existing  laws, 
and  to  such  as  may  thereafter  be  passed.  .  The  right  given 
is  i)ersonal,  and  nuiy  l)e  wholly  taken  aAvay,  or  it  may  be 
restricted  or  burdened  with  conditions  or  penalties  to  any 
extent  the  law-making  power  may  deem  proper.     It  is  not 
a  contract  depriving  the  legislature   of  the  right  to  act.s 
The  Supreme  Court  of  the  United  States  has  very  recently 
reiterated  these   views,"   as   to   the   regulation   of  private 
property,  wherever  necessary  for  the  public  good. 

0  Bedore  v.  Newton,  54  N.  II.  117 ;  s.  c.  2  Cent.  L.  J.  3G3 ;  Mulforel  v. 
Clewcll  21  Oliio  St.  191;  Dnroy  v.  I.echter,  10  n>.  4S3;  Scaler  v. 
Smith,  4  Cent.  I..  ,K  271 ;  State  v.  Johnson   (111.),  3  Month.  West. 

Jur.  72. 
7  Bartmeyer  V.  Iowa,  18  Wall.  129. 

s  Baker  V.  Pope,  2  Hun,  .").")7. 

II  Munn  et  al.  v.  People,  4  Cent.  L.  J.  250. 


^ii 


1 


rill  to  soil  intdxit'ii- 
antl   iinniunilit's  of 

])\     lilC      t'olll'tfi'lllil 

OH  iuo  forbiddoii  to 
proliibit  ilio  sollinu: 
IS  to  society.'     Tlio 
•oliihitioii'*  iiitortoro 
This    (luosliou    wiis 
iiitod   Stiitos  in  tlio 
<>;r()Uii(l  that  it  nus 
But  tVoni  tlio   ox- 
opitiioiis   tlu'ii,  it 
V,  cvon  wlioii  staiul- 
1)0  (livostod  only  hy 
;    owner.       But  the 
lago   acts,    iirosonts 
acts,  no  property  is 
is  interfered   with, 
to  differ  essentially 
rts    tbrbiddiiiir  sales 
ijxht   of   the  logi  sla- 
un(|nestionaI)le,  the 
)    all   existin<r  laws, 
d.  .  The  right  given 
away,  or  it  nni}-  be 
1  or  penalties  to  any 
ni  proper.     It  is  not 
)f  the  right  to  act." 
tes  has  very  recently 
egulation   of  private 
ublic  good. 

mt.  Ti.  J.  303;  Mulfortl  V. 

•,  10  n.  483;  Sc'uiifer  v. 

(111.),  3  Month.  West. 


IXTOXKATINU    LIQlOltS.  » 

Skc.  2.  T/ie  L(nm  of  Maim',  Coinicc/lrul,  IniUami  <ni(l 
XewJhivq^sfiire.—'Vhi'  Maine  law  of  lH.-)8  conlaino.l  a  goiierMl 
provision  that  any  person,  n.)t  anthorized  un.h-r  the  act, 
M-Uini--  intoxicating  li.|Uors.  shonhl  l)e  liable  for  all  injniies 
.oniinitteil  by  the  i)erson  to  whom  the  rKpior  was  soUl, 
while  intoxicated,  to  l)e  recovered  in  an  action  on  the  case  ;'" 
iind  a   statute  of  Connecticut   contains  a  somewhat  similar 


provision. 


A    statute    of    Indiaiiii,    passed    in    1H'):5.   but 
n'p'oahMltwo  vears  later,  gave  a  like  remedy,'-'  limited,  how- 
ever, to  a   suit  on  the  bond  of  the  ven(h)r,"  and  to  the  case 
of  J,  licensed  retailor."    In  IHT.'i,  an  act.  commonly  known  as 
the    liaxter   Law,  was   passed,   giving  to   the   wife,    child, 
parent,  husband,  guardian,  employer,   or  other  person,  a 
riiiht   of  acti(m   for  injuries  caused  to  them  by  the  sale  of 
intoxicatini:  li(|Uors,  against  the  seller,  and  the  landlord  of 
the  promises   where  tlio  sale  took  place.     This  was,  how- 
ever, repealed  in  IH75  by  an  act  which  restricts  the  right  of 
:„.tion  to  damages  caused  by   sales   in   violation  of    law.''- 

in  "If  iinv  person,  not  luithonzod  iis  aforesaid,  shall  sell  any  Intoxicating 
li.mors  to' any  person,  he  shall  be  liable  for  all  the  injuries  whieh  s,.ch 
„ers..n  may  e.,nnnit  while  in  a  state  of  intoxication  arisin-  therefrom 
i„  an  action  on  the  ease,  in  favor  of  Mich  person.'"  Maine,  Kev.  htats.  of 
1S71.  p.  301.  sec.  32.  ,      ^,       , 

u  ••  Whoever  shall  sell  intoxicating  liciuor  to  any  person  who  thereby 
becomes  intoxicated,  and  while  so  intoxicated  shall,  in  conse.inence 
thereof,  injnre  t!,e  person  or  property  of  another,  shall  pay  just  damages 
to  the  person  injured  in  an  action  on  this  statute;  an.l  if  tlie  person  sell- 
ing such  intoxicating  lirpior  is  licensed,  the  recovery  of  a  judgment  or 
such  damages  shall  be  conclusive  evidence  of  a  breach  of  the  bond. 
Kevision  of  1875.  p.  269,  sec.  9.  .  i .. 

12  '.  \ny  wife,  child,  parent,  guardian,  employer,  or  other  i)erson,  who 
shall  be  injured  in  person,  or  property,  or  means  of  support  by  any 
intoxicated  person,  or  in  consequence  of  the  intoxication,  habitual  or 
otherwise,  of  any  person,  shall  have  a  right  of  action  in  his  or  her  <.wn 
„an.e  against  any  person,  and  his  sureties,  on  the  bond  aforesaid,  who 
shall,  bv  retailing  spirituous  liquors,  have  caused  the  intoxication  of  such 
person,"  for  all  damages  sustained,  and  for  exemplary  damages.  Act  of 
March  4.  18.53.  sec.  10.  „  t    i   p- 

13  Martin  v.  West,  7  Ind.  C.-)7.        "  Stnible  v.  Nodwift,  11  Ind.  Go. 

15  The  Indiana  Act  of  starch  17,  1875  (Acts  Special  Session.  1875,  p.. 
-,5)  requires  a  person  to  whom  a  license  to  sell  spirituous  liquors  is 
granted  to  give  a  bond,  with  good  sureties,  in  the  sum  of  $2,000,  con- 


:« 


lNTOXICATIN(»    l.Kil'OUH. 


U,„U.r t\,..  lonn,..-  I»w  it  w..»  .Iv.i.lo.l  l.v  t  »'  Ni.-.r..,,,,.  C.urt 

„  .■„n»t,ui,w  a„.  ,.,„vi,i„„.  or  th, t.  th«t  u,  an  a,.,,, 

,  ,vir,.  un.UT  tlu.  slalnt...  it  wax  i,.H-..,»a,v  lo,-  lu-f  to  oslal.- 
;,,  1  Tl,,-  i„toxi,-ation  of  h..'  Imslm",!,  l.ul„t„,>l  or 
„tl...',wi»v.      2.   That  »l.o  lia.l  l"-«i.  it.jnfi'a  i"  P"-"""-  ."'' 

:  Ltim,.     8.  TItat  th,.  iotoxi..ation  IVon,  »'"■''"•  "'^ 
ro.ulto.l  was  ,a,iso,l  ii.  whoir,  of  ui  rati,  hy    li.  »o.l nur, 

th..  ,l..f..n.lant,»  Iti  Now  Hainl.»hif,.,  in  n«  ot  th.MU.it.h 
o  .1  ahilitv  of  anv  ,H.f»oi,  in  ,.on»..„u,.n,.,.  ol  tntoxtcatton 
Z„TL  L  of  :i.,.'of  ,.nla»fnlly  fufnish..,!.  *n,u,....»  n.ay 

.     ..ov,.f....  hy  any  o h.|„.n,U.„t  n|,o„  th.  '^i'-"'}^'-;^^ 

or  upon  whom  th..  ii.jnf...l  pof-on  .»  .h.lK.„.h.nt  to  tntan. 
"  ,  in„„1,  ff.nn  the  pcf-on  unlawfully  »..lli..^'  of  tnnn*- 
t  tho  li.;.or."  Uu.lef  this  a.,  thefe  .n-o  -"-'f"™' 
cZcs  in  which  a  f..n,...ly  hy  actau,  ,s  (.nv..,,.     All  r.t  thtm 

„.,„„„a  that  „c  wm  koep  aa  o*,!,  ..oa».  an^  w  .l^"-;  «»«•■  -", 

r:r;.rS™d;;;,;p;ot.»t.ac,,.,,. .v,.oar.o.co„,pe.ea. 

jurisdiction.'" 
16  Fountain  v.  Draper,  -t*;  I"^^"  •"^;^  intoxication,  shall  commit  any 

.Uo  by  W»"'  '■  !>'   *'^  »'  ca.  S B.a^l.  intoxication,  .hall  l.e  liable  to 

-i-^HiSdi£3=,:y;^^ 

from  the  use  of  liquor  ""'^^^J  '^  ^  j  j  .^.e^    crson  for  means  of 

''''''  '?  «;  rnTp^ron  wrrsrcirinj^^^^  person^  he  dependent 
support,  or  anj  P^^^  °°  J"  „  unlawfully  Belling  or  furnishing  any  such 
T'  TrfmlTS'tu  SSge  o   l^s'  stLlned'm  consequence  of  such 
IKstoherotelh^^^^^  and  any  married  woman 


INTOXICATIXd    Mtn'OHS. 


9 


ic  Snin-cino  Court, 
lilt  in  an  uction  by 
•y  lor  iH'r  to  orttub- 
imnd,  hiibitutil  or 
irod  in  |)('rson,  or 
•(lucncc  of  Huch  in- 
ni  which  thi'  injury 
Li-t,  by   tht"  snlinjr, 

I  to  tlu'  husbiind  by 

II  wise  of  thf  death 
^iice  of  iiitoxitation 
shod,  ihunagcs  may 
the  iijured  person, 

ependeut  for  nieuuH 
'  8elliu<i  or  furnish- 
•c  lire  five  diflferent 
iliveii.     All  of  them 

pay  ivll  rtnos,  costs,  and 
Sec.  -20  of  this  Act  Is  as 
or  give  away  any  intox- 
vrisions  of  tills  act.  shall 
,  to  any  person  who  shall 
or  property,  or  means  of 
eating  iiqnors,  so  sold  as 
11  any  court  of  competent 

:lcatioii,  shall  commit  any 
er  individual,  any  person, 
8  unlawfully  sold  or  furn- 
sication,  shall  be  liable  to 
,•  the  Injury  so  done,  to  be 
intoxicated  person  would 
d  in  the  same  action ;  and 
erson,  either  from  the  in- 
iiseqnence  of  intoxication 
aforesaid,  any  person  who 
ijured  person  for  means  of 
person  may  be  dependent, 
ing  or  furnishing  any  such 
led  In  consequence  of  such 
e ;  and  any  married  woman 


involve  such  private  and  personal  rehitious  us  that  of  parent 
ai.d  child,  husband  and  wife,  and  an  injury  to  either,  with  a 
remedy  to  the  other;  or,  without  such  relations,  a  reiiu'dy, 
fduiided  <m  an  injurv  to  person  or  property,  liy  an  action 
by  the  party  injured.     These  .-ases  lUV  :  The  .'use  ol   injury 
bV  one  intoxicated  to  the  person  or   property    ol  another, 
Avith  a  remedy  to  such  other  ;  the  case  of  the  death  or  dis- 
ability  of   the    person   injured,   from   such   injury,   with  a 
remeily  to  any  person  dependent  on  him  for  means  of  sup- 
poii  ;  "the   case   of  death  or  <lisability,   in   conseipience   of 
intoxication,  with  a  remedy  to  such  persons  us  are  dependent 
on  him  for  means  of  support ;  the  case  of  deut^h  or  disability 
from  the  iniur^'  reeciyed,  with   u  remedy  to  uny  person  ou^ 
whom  the  injured  party  may  be  dei)endeiit ;  and  th(>  case  of 
death   or  disability,  in  conseciuence   of  intoxication,  with  u 
remeily  to  any  party  on  whom  the   injured  person   may  bo 

dependent.'* 

Sec.  ;5.  The  La^^s  of  IlUnoh,  Iowa,  Kansas,  M}chi<jan, 
New  York,  Ohio  and  Wuconmi.  In  addition  to  the  laws 
on  this  -.ibject  just  cited,  iu  seven  other  Stutes,  Illinois, 
Io%va,  Kansas,  Micliifran,  Nvnv  York,  Ohio  und  Wisconsin,'* 

may  bring  such  action  In  her  own  name,  and  recover  such  damages  to 
her  own  use."  Laws  of  1870,  ch.  3,  sec.  3. 

18  HoUis  v.  Davis,  .56  N.  H.  74. 

19  //?inoi«-Rev.  Stats.  111.  Ch.  4;i,  p.  439,  r.piM'oved  March  .^0, 1874.- 
Section  8  "  Every  person  who  shall,  by  the  sale  of  intoxicating  liquors, 
with  or  without  a  license,  cause  the  intoxication  of  any  other  person, 
shall  be  liable  for,  i.nd  compelled  to  pay,  a  reasonable  compensation  to 
any  person  who  may  take  charge  of,  and  provide  for,  sue.  intoxlca  ed 
peiNOTi,  and  $2  per  day  In  addition  thereto  for  every  day  such  intoxicated 
person  shall  be  kept  in  consequence  of  such  intoxication,  which  sums 
may  be  recovered  In  an  action  of  debt  before  any  court  having  competent 

jurisdiction."  ,.  ,     ^^  ^,. 

SEC  9.  "Every  husband,  wife,  child,  parent,  guardian,  eniplo>er,  oi 
other  person,  who  shall  be  Injured  In  person,  or  property,  or  means  of 
support,  bv  any  intoxicated  person,  or  in  consequence  of  the  intoxica- 
tion, habitual  or  otherwise,  of  any  person,  shall  have  a  right  of  action 
in  his  or  her  own  name,  severally  or  jointly,  against  any  person,  or  per- 
sons, who  shall,  by  selling,  or  giving,  intoxicating  liquors,  have  caused 
the  intoxication,  iu  whole,  or  in  part,  of  such  person,  or  persons;  and 
any  person  owning,  renting,  leasing,  or  permitting,  the  occupation  ot 


10  INTOXICATINO    LIQIOH^- 

statutes  have  been  passed,  an.l  are  now,  and  lor  so.ne  years 
,,^,,,  ,,,„,  i,  tovee,  providing-  a  UH.re  --'P^'te  ve.ne.l        u 
a,„,a..-s  vesuUinir   tVon.  the    saU"    of    mtox.eat.n,.-  h.,uo,>. 
Thes;statutes  are  sul.stantiallv  the  sa.ne  in  then'  ,.rov,s,on. 
.„V  ..aUUng.  on-u.ise.  ancn..vh.g  Uno.......  U.U  .^^^^^^ 

,.  .,  ,.e  ..Ul  tUevein  or  ^J-^-,..  1...      ^^^  f;;;:^  ^^^^  ,,, 
shall  Knowinjily  pernut  tluiLin  \m  ■  .ui  ■  ,,or«(Mi.  shall  be 

have  caused,  in  whole  or  in  „art.   he  >"^"^  ^'     '     ,:^^  /  \[:  ;„„  ,,  ^m,,. 
hable.  severally  o.-  jointly.  -J'^;  -.y^;    ^  l.i  ll;:rfor  ex..^ 

iutoxieatins  li'l'""''  ^'toresaid  lo.  all  ''-'"^^  »  j,,,,^  ,„  ,„,•,. 

ph...yaa.„a.es:..,a.n.-.^^on.^^ 

suits,  and  to  control  th.'  sa  ni  an.l  tn  ,  „  ^       .^j.i  ^.jfi.e,. 

,,a  all  '>--'^---;:;f  i^::^:;:;  r  ua;a;:.;::vne.t  ^.La. .. ..  • 

''  ":;';;";  ;"•    l    U      uUalim  sallorgivln.  away,  of  intox>e=. 
oom-t  shall  ilnu    ,  an.  i  .   ,      ^^  t,,,.  leasee  or  tenant. 

:;r,s«:;'.Sv:^r™vr.;;*--.«- — '^ ^-" 

personal  property  ot  sucl.  '^•"  :'  '  !^„^^^.^;,citlion.  shall  be  liable ; 
exe:npt  from  levy  -''i,-  -'17  ,^S";'.",';^  . state  nntil  paid :  and 
,„a  sneh  jud,n.ent  ^''-^  /"^    ■^^;'  ^   ,  '       „,nher  any  buildin,  or 

^"  ^^:^^'Z^::^aoe^Se^iu  whole  or  in  part,  for  t.,e  sale  of 
prenuses  to  be  nscl  m  '  j     j     ,„„„it  the  same  to  be  so  us,.d 

l„toxieatl,.g  ;;!;;;- .-.,J^  I'^ler.. Ued  or  oeeupied  shall  be  heid 
or  oeeupied.  «ueh  »;"'^»"°       ^  ,    i„(joTnent  against  any  pesson 

,h,ble  for  and  u.ay  be  sold  to  paj  anj  -"J^'  ^^^^^^^^  ,^J  ,,^  ,„d  ,,  ,„,,. 
oecnpying  sueh  building  or  pn>m  se  .  l^^^^^^^l^^,,,,^.  whieh 
^e.t  the  same  to  *l';;i;;:j^-^.^,:^,,:^tj:;:r,,  after  execution  shall 
remains  unpuul  or  an>  p.   t    ""  <^^«»  ^^^  .^^^^  ,,.,,„,„  ,„eh  judgmenl 

issue  against  ^^'^^.l^^^  ,:^^,;^X  ,,e.Stion  shall  issue  against  the 
shall  have  been  reeoveietl,  ''"" '"^      .,.  p,uo  satisfy  said  exe- 

„,operty  so  leased  or  rented,  the  «!^  ;^^\\'  ^^,'^^^^^  J  aforesaid. 

:.,,on  out  of  f  ;;^:;^;;^^^-r;;;n  .:ni::th;  jtoi  n^mor.  or  other 

ti<,n  relatingto  the  cc,l.c.tW>n  of  ^^^^'^     ^^  .^amshop.  or  to  sell 
SKC.  5.  '•  >o  1'--"      ;  l^.;;*;  j  r "oard.  or  the  authorities  of  any  city 


^^ 


INTOXICATING    LIQt'OHS. 


u 


iuul  for  some  vi'ars 

nnpU'tc  vcnu'dy  for 

itoxicafniii-  litiiiors. 

ill  thcif  provisions 

hiu  iiiloxU'iiliii.uli'liK'i'* 
line  for  "IIk'I"  piiriio^f?. 
ntoxU-uting  li<iiiovs  tliiit 
1  of  any  porsoii.  Siliall  be 
Luvoiis.  celling  or  f:'ivin^' 
iijti'iiii'd.  and  for  cxcm- 
thii  .same  right  to  bring 
jcovered.  as  iifcme  k(>1<'  ; 
;iict..«liallbei)aiiU>itb('r 
111,  or  next  friend,  as  tlie 
viiig  away,  of  intoxiea- 
^  of  tlic  lessee  or  tenant, 
ireniiscs  where  suoli  un- 
u\d  all  suits  for  dannige> 
1.  in  any  of  tin'  cotirts  of 

t  for  damages,  and  costs, 
ansefiiience  of  tlie  sale  of 
lion,  tlie  real  estate  and 
,d,  exeopt  such  as  m;,y  be 
oxeenlion.  shall  be  lial)le ; 
val  estate  until  paid:  and 
[mother  any  building  or 
I-  in  part,  for  the  sale  of 
it  the  same  to  be  so  used 

or  oeeupied  sliall  be  lield 
gment  against  any  pesson 
Mlings  may  be  had  to  sub- 
idgmeut  reeovered.  whieh 
ire  or  after  execution  shall 
linst  whom  such  judgmeiit 
tion  shall  issue  against  the 
iroeeert  to  satisfy  said  exe-- 
d  or  occupied  as  aforesaid, 
jelong  to  a  minor,  or  other 
onservator  of  such  percon. 
held  liable  instead  of  suoli 

the  provisions  of  this  sce- 
nt." 
iieep  a  dramshop,  or  to  sell 

the  authorities  of  any  city, 
liond  in  the  penal  sum  of 


ipul  ctrcct,  ami,  for  the  purposes  of  this  review,  may  be 
<ri-()iipe(l  tojrether.  In  the  first  phiee,  they  ditfer  from  the 
laws  of  Conneetieiit,  Indiana,  Maine  and  Ne\v  Hampshire, 
in  "-ivino;  a  riirht  of  action  for  the  consecpienees  of  the  in- 

.«:$,000,  payable  to  the  People  of  the  State  of  Illinois,  witli  at  least  two 
good  and'sulllcient  sureties,  freeholders  of  the  county  in  which  the 
Hceiisc  is  to  lie  granted,  to  be  approved  by  the  officer  who  may  l)e 
authorized  to  issue  the  license,  conditioned  that  he  will  pay  to  all  i)ersons 
all  damages  that  they  may  sustain,  cither  in  person,  or  property,  or 
means  of  supi)ort,  by  reason  of  the  person  so  obtaining  a  license,  selling 
or  giving  away  intoxicating  liquors.  »  *  *  ♦  Any  bond 
tivken  pursuant  to  this  section  may  be  sued  upon  for  tlie  use  of  any 
person  (u-  his  legal  representatives,  who  may  be  injur.'d  by  reason  of  the 
selling  or  giving  away  any  intoxicating  li(iuor  by  the  person  so  licensed, 
or  by  his  agent  or  servant." 
Iowa— Code  of  187:5,  See.  15.5(5;  see  Sec.  8  of  Illinois  Act. 
Sec.  1557 ;  see  Sec.  !)  of  Illinois  Act. 

SEC.  1558.  "  For  all  flues  and  costs  assessed,  or  judgments  rendered,  of 
any  l<ind  against  any  person  for  any  violation  ot  the  provisions  of  this 
cliapler,  tiic  personal  and  real  property,  except  the  homestead  as  now 
provided  by  law,  of  such  person  as  well  as  the  premises  and  property, 
personal  or  real,  occupied  and  used  for  that  purpose,  witli  the  consent  or 
knowledge  of  the  owner  thereof  or  his  agent,  by  tlie  person  manufactur- 
ing or  selling  intoxicating  liquors  contrary  to  the  provisions  of  this 
chapter  shall  be  liable,  and  all  such  fines,  costs,  or  judgments,  shall  be 
a  lien  on  such  real  estate  until  paid;  and  when  any  person  is  required 
by  Sees.  1528  and  1529  of  this  chapter  to  give  a  bond  with  sureties,  the 
principal  and  sureties  in  the  bond  mentioned  shall  be  jointly  and  sever- 
ally liable  for  all  civil  damages,  costs,  and  judgments  that  may  be 
adjudged  against  the  principal  in  any  civil  action  autliorized  to  be 
brought  against  him  for  any  violation  of  the  provisions  of  this  ch.apter," 

etc. 

Kansas— ^  I)assler"s  Stats..  Ch.  35,  p.  354. 

Sec.  9;  see  Sec.  8  of  Illinois  Act. 

Sec.  10;  see  Sec.  9  of  Illinois  Act. 

Mrftu/flK-Laws  of  1871 ,  p.  363.  This  act  was  approved  and  took  ettect 
April  20.1871.  Sec.  2  is  as  follows:  "That  every  wife,  child,  parent, 
guardian,  husband,  or  other  person,  who  shall  be  injured  in  person, 
property,  means  of  support,  or  otherwise,  by  any  Intoxicated  person,  or 
by  reason  of  the  intoxication  of  any  person,  shall  have  a  riglit  of  action 
in  his  or  her  own  name  against  any  person  or  persons  who  shall,  by 
selling  or  giving  any  intoxicating  liquor  or  otherwise,  have  caused  or 
contributed  to  the  intoxication  of  such  person  or  persons ;  and  in  any 
such  action  the  plaintiff  shall  have  the  right  to  recover  actual  and 
exemplary  damages.  And  the  owner  or  lessee,  or  person  or  persons 
renting  ov  leasing  any  building  or  premises,  having  knowledge  that 


12 


INTOXICATING    LIQUORS, 


toxication  of  a  person,  without  ir^nird  to  the  unlawfulness 
of  the  sale.  They  even  go  further  than  this,  in  nuikinjr  no 
distinetion  betweJn  a  sale  and  a  aift.  They  provide  that 
every  husband,  wife,  ehild,  parent,  jruardian,  employer,  or 

intoxicating  liquors  -AvetoU'  sold  tluTi-in  at  retail  as  a  b.-vorage,  shall l.e 
liable  severallv  or  jointly  with  the  person  so  selling  or  givnig  intoxiea- 
tinKli.iuors  as'aforesaiJ.  Apcl  in  every  action  by  any  wife,  husband,  par- 
ent or  ehild.  general  reputation  of  the  relation  of  Inisl.aud  and  wi  e. 
parent  and  ehild,  shall  be  prima  facie  evidence  of  such  relation,  and  the 
Muount  reeovere.1  by  every  wife  <.r  child  shall  be  his  or  her  sole  and 
separate  property.  Any  sale  or  gift  of  intoxicating  luiuors  by  he 
lessee  of  anv  premises  resulting  in  damage  shall,  at  the  optu>n  of  the 
le«or  worka  forfeiture  of  his  lease;  and  the  circuit  court  in  chancery 
„,av  enjoin  tlu-  sale  or  giving  away  of  intoxicating  liquors  by  any  essee 
of  pren.lses.  which  may  result  in  loss,  danuige.  or  hab.hty  to  t»ie  les,m 
or  any  person  claiming  under  such  lessor.*"    Oomp.  Laws,  1871.  ^  ol.  1, 

^noYork-Latos  of  1873,  Ch.  C46.  Sec.  1.-"  Every  husband,  wife,  child, 
narer  .  guardian,  employer,  or  other  person  who  shall  be  injured  u.  person 
or  property,  or  means  of  support,  by  any  intoxicated  person,  or  in  con- 
sequence of  the  intoxication,  habitual  or  otherwise,  of  any  person,  shall 
Inve  a  right  of  atMon  in  liis  or  her  name  against  any  i)ersoii  or  persons 
who  shall,  by  selling  or  giving  away  intoxicating  li-iuors.  [have]  caused 
the  intoxication  in  whole  or  in  part  of  such  person  or  persons;  and  any 
person  or  persons  owning  or  renting  or  permitting  the  occuiiation  ot  any 
building  or  premises,  and  having  knowledge  that  intoxicating  li-iuors  are 
to  be  sold  ther."iii.  shall  be  liable  severally  or  jointly  with  the  person  or 
persons  selling  or  giving  intoxicating  liquors  aforesaid,  for  all  damages 
sustained  and  for  exemplary  damages;  and  Ml  damages  recov-ered  by  a 
minor  under  this  act  shall  be  paid  either  to  such  minor,  or  to  Ins  or  her 
parent,  guardian,  or  next  friend  as  the  court  shall  direct;  and  the  unlaw- 
ful sale  or  giving  away  of  intoxicating  liquors  shall  work  a  forfeiture  of 
all  ri<-lits  of  the  lessee  or  tenant  under  any  lease  or  contract  of  rent  upon 
the  premises."     (Rev.  Stats.,  1875.  Vol.  2.  p.  046.)  ^     ,  „  ,    „  ,  ,„ 

o!ao.-Act  of  May  1, 1854,  2  S  and  C.  1431.  Section  G  of  this  act  U 
substantially  the  same  as  section  1550.  and  section  7  as  section  Lw<^  of 
the  Iowa  code.  Bv  the  Act  of  April  18, 1870  (Saylor  2300),  section  <  ot 
the  Act  of  May  1, 18.54,  was  amended  so  as  to  read  like  section  9  of  the 
Illinois  act.     (3  Saylor's  Stats.  2360.  ch.  1871.) 

Section  10  of  the  Act  of  May  1. 1854,  is  amended  by  Act  of  Apiil  18, 
1870  so  as  to  read  as  follows :  "  For  all  fines,  costs  and  damages  assessed 
ajrai'nst  anv  person  or  persons  in  consequence  of  the  sale  of  intoxicating 
liquors,  as"provided  in  se.-tion  7  of  this  act,  and  the  act  to  which  this  is 
amendatoi-v,  the  real  estate  and  personal  property  of  such  person  or  per- 
sons of  every  kind,  without  exception  or  exemption,  except  under  the  act 
to  amend  an  act  entitled  an  act  to  regulate  judgments  and  executions  at 


to  tlu«  unlawfulness 

I  this,  in  nuikinjr  no 

Thov  provitU'  tlmt 

rdiim,  oniployci",  or 

il  iis  a  bi'vorage,  sliall  l)e 
ling  or  giving  lutoxica- 

siuy  wiff,  Imsband.  par- 
[1  of  liusband  and  wife. 
)f  siK'li  relation,  and  tlie 

be  bis  or  lier  sole  and 
xii'ating  liiinors  by  the 
ijll.  at  tlie  option  of  tlie 
nreiiit  I'ourt  in  olianeery 
ing  litinors  by  any  lessee 

or  liability  to  the  lessor 
ontp.  Laws,  1871.  Vol.  1, 

•ery  husband,  wife,  child, 
shall  be  injured  in  person 
icated  i)erson,  or  in  con- 
viso,  of  any  person,  shall 
ist  any  person  or  persons 
ng  litiuors.  [have]  caused 
■rson  or  persons ;  and  any 
ing  the  occupation  of  any 
it  intoxicating  liipiors  are 
ointly  with  the  person  or 
:iforesaid,  for  all  damages 
I  damages  recovered  by  a 
i\i  minor,  or  to  his  or  lier 
all  direct;  and  the  unlaw- 
shall  work  a  forfeiture  of 
a  or  contract  of  rent  upon 
16.) 

Section  G  of  this  act  is 
iction  7  as  section  1557  of 
(Saylor  2300) ,  section  7  of 
read  like  section  9  of  the 

ended  by  Act  of  April  18. 
osts  and  damages  assessed 
of  the  sale  of  intoxicating 
id  the  act  to  which  this  is 
?rty  of  sncli  person  or  per- 
ption,  except  under  the  act 
dgnients  and  executions  at 


INTOXICATING    LIQUOHS, 


13 


other  person,  who  shall  be  injured  in  person,  or  property, 
or  means  of  support,  hy  any  intoxicated  person,  or  in  eon- 
,se(iuente  of  the  intoxication,  habitual  or  otherwise,  of  any 
])«'rson,  shall  have  a  right  of  action  in  his  or  her  own  name 

law.  passed  March  1. 18:?1  (Chase  820),  passed  March  9, 1840,  took  eflcct 
March  15,  1840  (Curwen,  ch.  :W0).  shall  be  liable  for  the  payment 
thereof;  and  such  fines,  costs  and  damages  shall  be  a  lien  upon  such 
real  estate  until  paid;  and  in  case  any  person  or  i)ersons  shall  rent  or 
lease  to  another  or  others  any  building  or  premises  to  be  used  or  occu- 
l)ied  in  whole  or  iu  part  for  the  sale  of  intoxic-iting  li(iuors,  or  shall  per- 
mit the  same  to  be  used  or  occupied,  in  whole  or  in  part,  such  building 
or  premises  so  leased,  used  or  occupied,  shall  be  held  liable  for  and  may 
be  sold  to  pay  all  fines,  costs  and  damages  assessed  against  any  person 
or  persons  occupying  such  building  or  premises;  and  proceedings  may 
be  had  to  subject  the  same  to  the  payment  of  any  such  flue  and  costs 
assessed  or  judgment  recovered  which  remain  unpaid,  or  any  part 
thereof,  either  before  or  after  execution  shall  issue  against  the  property 
of  the  person  or  persons  against  whom  such  fine  and  costs  or  judgment 
shall  have  been  adjudged  or  assessed;  and  when  execution  shall  issue 
against  the  property  so  leased  or  rented,  the  officer  shall  proceed  to  sat- 
isfy said  execution  out  of  the  building  or  premises  so  leased  or  occupied 
as  aforesaid;  and  in  case  such  building  or  premises  belong  to  a  minor, 
insane  person,  or  idiot,  the  guardian  of  s\ieh  minor,  insane  person  or 
idiot  who  has  control  of  such  building  or  premises,  shall  be  liable  and 
account  to  his  or  her  ware"  for  all  damages  on  account  of  such  use  and 
occupation  of  such  buildiuK  Jr  premises,  and  the  liabilties  for  the  fines, 
costs  and  damages  aforesaid;  and  all  contracts  whereby  any  building  or 
premises  shall  be  rented  or  leased,  and  the  same  shall  be  used  or  oc- 
cupied in  whole  or  in  part  for  the  sale  of  intoxicating  liquors,  shall 
be  void;  and  the  (lessee)  person  or  persons  renting  or  leasing  said  build- 
ing or  premises,  shall,  on  and  after  the  selling  or  giving  intoxicating 
liquors,  as  aforesaid.  ])e  considered  and  held  to  be  in  possession  of  said 
building  or  premises."     (3  Saylor's  Stats.,  23G4,  ch.  1871.) 

Section  7  of  the  Act  of  1870,  is  again  amended  by  an  Act  of  February 
18.  1875  (4  Saylor's  Stats.,  p.  3394),  as^  follows:  •'  Provided,  that  such 
husband,  wife,  child,  parent,  guardian,  or  other  interested  person  liable  to 
be  so  injured  by  any  sale  of  intoxicating  liquors  to  any  person  or  persons 
aforesaid,  who  shall  desire  to  prevent  the  sale  of  intoxicating  liquors  to 
the  same,  shall  give  notice  either  in  writing  or  verbally  before  a  witness 
or  witnesses  to  the  person  or  persons  so  selling  or  giving  the  intoxicating 
liquors,  or  to  the  owner  or  lessor  of  the  premises  wherein  such  intoxica- 
ting liquors  are  given  or  sold,  or  shall  file  with  the  township  or  cori)ora- 
tion  clerk  in  the  town.ship,  village  or  city  wherein  such  intoxicating 
liquor  maybe  sold,  notice  to  all  liqnor  dealers  not  to  sell  to  such  person 
or  persons  any  intoxicating  liquors  from  and  after  ten  days  fron>  the  date 
of  80  filing  said  notice ;  and  such  notice  or  notices  filed  with  such  clerk 


14 


IXTOXICATING    LIQUOKS. 


scvorallv  or  jointly  a^iinst  any  pom).!  who  shall,  l.y  sc  1-       | 
in.r  „r  ".rivin-  awav  intoxicatin-  li<iuor-S  have  oauscd  the 
intoxication  in  whole  or  in  part  of  such  persons,   tor  al 
«l.,niti.-es  sustained  tn.n.  the  etlect  of  such  intoxh-ation,  and 
tor  exemplary  damages.^     Under  the  Illinois  and  Kansas 

shall  be  entered  l.y  theelerk  of  m.eb  township,  city  or  village  iu  a  Ix.ok 

o  lekent  for  sueh  purpose,  whieh  suid  book  shall  be  open  for  the  ui- 

In     tion  o    all,  ete.    otherwise,  the  aforesaid  injured  person  or  persons 

a  2  b  endtled  to  real  or  exemplary  dan.ages  for  the  alleged  u,u- 
rie  whieh  they  may  have  sustained  by  the  intoxieat.on  ot  any  of  the 
Xc^ald  persons,  Jiz, :  husband,  wife,  child,  parent,  g.^d.a.  e.n- 
ph.vee  or  anv  other  person  or  perso.is  whomsoever;  provuied,  tha  s  uh 
. ot  ce.  whether  served  personally  or  tiled  with  the  clerk  as  aforesa  d 
i.a     during  its  existen.  e,  enure  to  the  benettt  of  all  persons  interested 

S    :t  ON  2  nuvkes  it  unlawful  for  any  saloon  kcper  or  other  person   o 
inddish  the  fact  of  sueh  notice  having  been  given,  by  posting  or  pnnt.ng 

'"  E-S::^Su;n  l.  d..  127,  of  tl.  Laws  of  1872,  it  is  declared  to 
be  lawful  for  any  person  to  sell  intoxicating  liqu.n-s  without  hav  ng 
S'.  U     d  a  licetlse  therefor;  and  that  no  person  shall  be  gra.Ued 

":i  ,  Hcense  without  giving  a  bond  •>  conditioned  for  the  payment  o^ 
all  danuigc's  to  any  person,  whleh  may  be  inllicled  upon  or  suite.,  d  bj 
"hi      e  ther  in  person  or  property,  or  n.eans  of  support,  by  reason  of  ob- 
t  bin"    1    ens. ,  selling  or  giving  away  intoxicating  drinks,  or  deahng 
he  en  ;'•  and  that  such  bond  n.ay  be  sued  or  recovered  upon  tor  the  use 
o    any  person,  or  his  legal  representatives,  who  nn.y  be  injured  by  rea- 
son   ft  eseHng  or  giving  away  of  intoxicating  Ihiuors  by  the  persons 
,bLdnlng  thelicc'e.    Section  «  of  the  san.e  act  is.  in  its  provismnjs 
like  seetionl  of  the  New  York  Statute.    This  section  was  repealed  bj 
ch    179  Tiws  of  1S74.    Section  1.!  of  the  latter  act  reads  as  follows: 
u  (nv  pei-son  or  persons  who  shall  be  injured  in  person,  property  or 
1,:'  ns  of  support:  by  or  in  conse.iuenee  of  the  intoxication  of  any  minor 
Hnibitual  !lninkard,  shall  have  a  right  of  action  '^-'^^^^ ^;:^^ 
his   her  or  their  name  against  any  person  or  persons  who  have  been  not  - 
ini.    'requested  in  wriUng  by    •    ^     *    the  husband,  wite,  pai-ent- 
ives  cnuirdians  or  persons  having  the  care  or  custody  of  such  muioi 
;  .    abiuial  drunkard  not  to  part  with  IKptor  or  other  intoxicating  dnnk^ 
o    them,    and  who,   notwithstanding   such    notice  and    request    shall 
Im.    h  g  V  sell  or  give  away  intoxicating  liquors,  thereby  causing  the  in- 
oxk-  tfon  of  such  minor  or  habitual  drunkard,  and  shall  be  liable  for  all 
dum;gS  resulting  th.-refrom.    A  married  woman  ^^^^  ^^^^^^ 
rb^ht  !o  bring  suit  and  to  control  the  same  as  a  feme  so^^      As  to  the 
c^ctof  the"mendmenton  causes  M»en  pending^see  DiHon  v     -^ 
30  Wis.  :i44;  Farrell  v.  Drees,  Supreme  Court  of  Wis.,  Feb.  lerm,  18<7. 
•-'Ollev.  Stats.  111.,  eh.  43,  sec.  9:  Iowa  Code  of  1873  sec.  1557;  Kas.  1 


^M 


INTOXICATlN<J    LKiUOKS. 


15 


who  shall,  hv  scU- 
s,  have  causi'd  the 
eh  persons,  for  all 
eh  intoxication,  and 
Illinois  ami  Kansas 

■ity  or  villuge  in  ii  book 
mil  be  opiMi  for  the  iii- 
ijiired  ptnson  or  persons 
[res  for  the  alleged  inju- 
oxiciition  of  any  of  the 
parent,  guaraiau,  eui- 
^•cr;  provided,  that  sueh 
1  the  I'lerk  as  aforesaid, 
f  all  persons  interested.' 
u'eper  or  otiier  person  to 
!n,  by  posting  or  jirinting 

s  of  1872,  it  is  declared  to 
;  liilu(n-8  without  liaviug 
'  person  shall  be  granted 
)ned  for  the  payment  of 
:U'a\  upon  or  sulVen^d  by 

sui)port,  by  reason  of  ob- 
icating  drinks,  or  dealing 
ecovered  upon  for  the  use 
o  may  be  injured  by  rea- 
ing  lupiors  by  the  persons 
,e  aft  is,  in  its  provisions, 
J  section  was  repealed  by 
tter  act  reads  as  follows: 
d  in  person,  property  or 
intoxication  of  any  minor, 
tion  severally  or  jointly  in 
irsouswlio  have  been  noti- 
liusband,  wife,  parent,  rel- 

or  custody  of  such  minor 
ir  other  intoxicating  drinks 

notice  and  request,  shall 
)r8,  thereby  causing  the  iu- 
1,  and  shall  be  liable  for  all 
omau  shall  have  the  same 
.8  a  feme  sole."  As  to  the 
ding,  see  Dillon  v.  Linder, 
t  of  Wis.,  Feb.  Term,  1877. 
L'  of  1873  sec.  1557;  Kas.  1 


Sliitiitt's,  it   is  (loclarcd  tli:it  any  person  who  shall,  in  Illin- 
ois, hv  the  "sah-,"— in  Kansas,  by  the  "sale, hartor  or  oift,"' 
ot"  intoxicating:-    TKiuor,    canse    the    intoxication  of  another, 
shall  l)e  lia!)le  and  compelled  to  pay  a  reasonable  compen- 
sation to  any  person  who  may  take  charoe  of,  and  provide 
forsuch  ii\toxicaled  person  ;  and  in  Illinois  "  two  dollars."  in 
^      Kansas  "  tiv.e  dollars  "  per  day  in  addition  thereto  for  every 
I      day  snch  intoxicated  [)erson  shall  he  kept  in  consecineiice  of 
his  intoxication,  which  snm  may  be  recovered  in  an  action  of 
I      del»t   before  any  conrt  having  jurisdiction.-'     In  Iowa  and 
1      Oiiio,  the  rijrht  to  recover  such  compensation  is  restricted  to 
t      I'Mscs  of  unlawful  sales  of  liquor,  or  sales  made  without  the 
i      proper  license,  and  to   the  sum  of  "  one  dollar  "   f()r  each 
I      day."    These  sections,  it  may  be  observed,  contemplate  two 
I     conditions,  in  which  the  person  cared   for  may  be  placed. 
I      For  simply  taking  charge  of  and  [)roviding   for  him  while 
I      drunk,    a    reasonable  compensation    is  allowed  ;    while    tor 
1      keepino-   him   in  couseipience  of  his  intoxication — as  when 
sickness   ensues,  ov  if  while  drunk  he   injures   himself,    or 
becomes  disabled,    and  it  theri'by  becomes  necessary  that 
care  shoidd  be  bestowed  upon  him — a  sum  certain  is  allowed 
to  be  recovered  from  the  seller.     And  as  no  more  than  the 
penalty  can  be  recovered  under  the  latter  part   of  the  sec- 
tion, evidence  of  what  it  was  worth  to  care  for  the  person 
injured  is  inatlmissible.'-"  A  wife  may  recover  under  this  sec- 
tion the  stated  compensation  for  taking  care  of  her  husband 
I     while  intoxicated,  in  addition  to  any  injuries  to  person  or 
proi)erty,   or  means  of  support,   for  which   she  may  claim 
damages  under  the  other  sections.-* 

Besides  the  personal  liability  of  the  vendor  or  donor  of 
intoxicating  licpiors  for  all  damages  arising  therefrom,  under 

Dassler's  Stats,  ch.  ;i5.  sec.  10;  X.  Y.  I-aws  of  1873,  ch.  04G,  sec.  1; 
Ohio.  Saylor.  2300,  sec.  7;  Mich.  Laws  of  1871,  Vol.  l,ch.  CD,  sec.  2; 
Wis.  I-aws  of  1872.  ch.  127,  sec.  1. 

■ii  ]  Dassler's  Stats.,  ch.  35.  sec.  0;  Itov.  Stats.  III.,  ch.  43.  sec.  8. 

.«Iowa  Code  of  1873,  sec.  l-'wii;  Ohio,  2  S.  andO.  1431,  sec.  G. 

-■=5  Brannan  v.  Adams,  70  111.  335. 

-'4  Wightman  v.  Devere.  33  Wis.  370. 


16 


lNTOXlCATIX(J    LIQLORS. 


the  statutes  <.f  Illinois,  Mirhifrau,  New  York  and  Ohio,  any      ] 
person  ovvninjr,  rentinjr,  loasin-  or  permitting  the  oeeupa-     ! 
lion  of  anv  bnikling  or  premises,  and   havin-r   knowledge 
that  intoxicating  ILpiors  are  to  be  sold  therein,  en-  who  hav- 
i„cr  leased  a  building  for  other  purposes,  shall  pernnt  the 
sale  of  intoxieating  li.iuors  therein,  whieh  niay  have  caused, 
in  whole  or  in  part,  the  intoxication  of  any  person,  is  made 
liable,  severally  or  jointly,  with  the  person  or  persons  selling 
or  -iving  the  intoxieating  li.iuors,  for  all  damages  that  may 
be  "sustained  from  such  sale  or  gift,  and  likewise  for  exem- 
pl-n-v  damages.*     Bv  the  Illinois,  Iowa  and  Ohio  statutes,. 
the\.remises  in  which  the  sale  is  made  are  liable,  an<l  a 
iud.nnent  obtained  under  the  acts  bec(mies  a  lien  upon  the 
property,  whether  owned  by  the  person  who  sold  or  gave 
awav  th'e  li.,uor,  or  by  one  who  has  rented  it  to  be  used  tor 
the 'sale  of  intoxicating  Hcpiors,  or  though  leased  or  rented 
for  another  purpose,  permits  it  to  be  used  in  such  manner  : 
and  proceedings  may  be  had  to  subject  the  prennses  to  the 
payment  of  a  judgment,  either  before  or  after  exe  ut.on  la 
issue.l  against  the  property  of  the  person  against  wnom  the 
uulgment  mav  have  been  recovered .     And  if  the  budding  or 
'premises  belong  to  a  minor,  or  other  person  under  disalnlity , 
the  guardian  or  conservator  of  such  person,  and  h,s  rea   and 
personal  property,  are  liable  m  the  place  ami  stea.1  ot  the 
property   of  his  ward.     In  Illinois,   Ohio,  New  York  and 
Michigan,  the  sale  or  gift  of  intoxicating  li.iuors   contrary 
to  the  provisions  of  the  act,  works  a  forfeiture  of  all  rights  of 
the  lessee  or  tenant  under  any  lease  or  contract  of  rent  upon 
the  premises,  where  such  unlawful  sale  or  gift  takes  place. 
The  cmrt  of  chancery,  under  the  last  statute,  is  authorized 
to  enjoin  the   sale  or  gift  of  intoxicating  ILpiors,  by  any 
lessee  of  premises,  whieh  may  result  in  liability  on  the  part 

25Rev    Stats.  111..  .;h.  43,  sec.  9;  Mich.  Laws  of  Is^'H,  V()I 
GO  sect-i;  N.  Y.  Laws  of  1873.  eh.  640,  sec.  1 ;  Ohio  (Saylor)  .^^    ..  ■ 
«=Rev  Stats.  III.,  ch.  «,  sec.  10;  Code  of  la.  sec.  1.58;  Ob-.o         .  - 

"S^r  S^  n?-  T\.  sec.  10;  N.  Y.  La^  of  1873,  ch.  640,  sec.  1 ; 
Ohio  (Saylor)  2300.  sec.  7;  Mich.  Laws,  1871,  ch.  09,  sec.  2. 


IXTOXICATIN(]    LIQIOUS. 


17 


York  iind  Ohio,  any 
•mittiiisr  the  ociiipa- 
1   haviii'X   knowledge 
therein,  or  who  liav- 
;e.s,  shall  permit  the 
c'h  may  have  eanseil, 
any  person,  is  made 
ion  or  persons  selling 
ill  damages  that  may 
id  likewise  for  exem- 
a  and  Ohio  statntes, 
de  are  liable,  and  a 
mies  a  lien  npon  the 
[)n  who  sold  or  gave 
nted  it  to  be  used  for 
ni<A\  leased  or  rented 
sed  in  sueh  manner  :* 
't  the  premises  to  the 
i  or  after  exe  ution  is 
son  against  wnom  the 
And  if  the  building  or 
frson  under  disal)ility, 
'vson,  and  his  real  and 
ilaee  and  stead  of  the 
Ohio,  ^'ew  York  and 
iiting  li(iuors,  contrary 
)rfeiture  of  all  rights  of 
L-  contract  of  rent  upon 
le  or  gift  takes  place  Z^' 
t  statute,  is  authorized 
eating  liquors,  by  any 
in  liability  on  the  )iart 

Laws  of  1871,  Vol 
;Ohio  (Saylor)  230';.  =^..  ■ 
E  la.  see.  l.'iSS;  Ob'.o  ■  =- 

aws  of  187.3,  ch.  646,  s'-^c.  1 ; 
,  ch.  GO,  sec.  2. 


of  the  lessor.  Under  all  the  statutes,  a  married  woman  is 
■'  liiven  the  right  to  bring  suits,  and  to  control  them  and  the 
i  amount  recovi-red,  as  a  feme  sole,  and  all  damages  i-ecovered 
I  1)v  a  min<n-  are  directed  to  be  paid  either  to  him  or  her,  or 
s  to  his  or  her  parent,  guardian,  or  next  triend,  as  the  court 
i    may  order. 

I  in  Illinois,  Iowa,  and  Wisconsin,  a  party  applying  for 
!  leave  to  sell  intoxicating  Tuiuors  is  recpiired  to  give  a  bond, 
I  with  sureties,  conditioned  to  pay  all  damages  that  may  be 
I  sustained  by  any  one  from  the  sale,  either  in  person,  prop- 
i  erty,  or  means  of  support.  A  bond,  given  in  pursuance  of 
i  this  provision,  may  be  sued  upon  for  the  use  of  any  per- 
i  .son,  or  his  legal  representatives,  who  may  be  injured  1)y 
i  reason  of  the  selling  or  giving  away  of  intoxicating  li(]uor 
1  by  the  person  licensed,  or  his  servant  or  agent.'^  This  sec- 
I  tion  of  the  act,  and  the  section  giving  a  general  cause  of 
I  action  by  the  parties  thevein  named,  are  to  be  construed 
together ;  the  latter  detining  more  specitically  and  limiting 
the  obligation  of  the  bond  required  by  the  former.^'* 

By  recent  amendments  to  the  statutes  of  Ohio  ^  anil  Wis- 
consin,''!  the  liability  of  the  seller  is  restricted  to  the  conse 
(luences  of  sales  made  after  notice  to  him  not  to  sell  to  the 
person  intoxicated,  given  ])y  any  of  the  parties  mentioned 
in  the  acts  as  having  the  right  of  action. 

Under  the  statutes  of  the  seven  states  which  we  have 
classed  together,  it  has  been  remarked  that  the  liability  for 
the  sale  or  gift  does  not,  in  case  of  damage  i-esulting,  depend 
upon  its  unlawfulness.^-  Herein  the  liability  differs  from 
that  created  under  the  laws  of  Connecticut,  Maine,  Indiana 
and  New  Hampshire,  where  the  remedy  is  given  only  when 
the  transaction  has  been  in  violation  of  law, —  such  as  a  sale 
by  an  unlicensed  person,  or  to  a  minor  or  habitual  drunkard, 

^      28  Rev.  Stats.  111.  ch.  43,  sec.  5;  Code  of  la.  sec.  1558;  Wis.  Laws  of 

•3  1S72,  eh.  127,  sec.  1. 

2      •■»  state  V.  Ludington,  33  Wis.  107. 

I      30  Act  of  1S:5  (4  Saylor,  p.  3394). 

I      31  Laws  of  1874,  ch.  179,  sec.  16. 
32  Hayes  v.  Phelan,  4  Hun,  732. 
2 


j^g  INTvyXICATINO    LIQUORS. 

ov  to  one.  aft.r  notice  tron.  Im  wife  or  tunnly  of  his  .l.ssoluto 
habits.     It  nuiv  be  here  remarked,  however,  that  the-  Ohio 
statute,   althoufrh  wantin^r  the  proviso,  -  eontrary     o   the 
provisions  of  this   art,"   has  been  eonstrne.1  to   authon/e 
actions  of  this  kind  in  eases  only  where  the  sale  has  l)een 
nnhiwfnl.     Bnt  this  constrnition  was  arrived  at  npon  a  con- 
sideration of   several  acts  passed  at  dilferent   times,   and 
amended   at  different  periods,  and  is  neither  m  aceordanee 
with  the  wordin-  of  the   laws,  nor  the  deeis.on  ot  a  eonrt 
,)f  tinal  resort.^^^     And  exeept  \n  this  instanee,  it  has  not 
].een   attempted  to  evade  the  law  and  the  intention  ot  it., 
framers  by  sneh  an  interpretation.     A  detendant  niay,  . 
seems,  nevertheless  show  that  he  1^'^^^, '>-»/'—■'  t";^; 
spiritnons  lienors,  and  was  legally  selhng  them  under  that 
authority  on  the  oceasion   complained  of,  not  as  a  detense, 
but  in  n'litigation  of  damages .«  „  .     •     , 

Skc  4  Who  Liable-Master  and  Servant-Prinapal 
and  AqenL-TVo  words  "any  person,"  as  used  m  the 
statutes'  are  very  broad,  and  end.race  all  persons  makn>g 
the  sale,  without  regard  to  their  eapacity-whether  owner 
son  elerk,  or  servant.-  With  regard  to  the  proprietor,  m 
ihe'eonstruction  of  these  statutes,  the  doctrine  of  agenc^s 
the  liability  of  the  master  for  the  acts  ot  Ins  servant  m  the 

«^  Granger  v.  Knipper,  2  Cin.  480;  Ma.on  v.  Shay,  7  C.  L.  N.  152. 

34  8  Alb.  L.  J.  13."). 

3.  Worley  ''■^''^^^^^,,  ,re  liable  in  criminal  prosecu- 

33  Me.  490.    As  to  the  3^'^^"^  f/^.^ '^'^J'.eer,  32  la.  405,  and  of  th 
Mass.  144. 


fiiinily  of  his  dissohito 
nwever,  that  the  Ohio 
0,  «'  contrary  to  the 
instrucd  to  authorize 
here  the  sale  has  heen 
iirrived  at  upon  a  cou- 

different  times,  and 
;  neither  in  accordance 
;he  decision  of  a  court 
s  instance,  it  has  not 
id  the  intention  of  its 

A  defendant  may,  it 
d  been  licensed  to  sell 
cllhig  them  under  that 
d  of,  not  as  a  defense, 

:d  Servant— Principal 
•son,"  as  used  in  the 
•c  all  persons  making 
,;i,.ity — whether  owner, 
rd  to  the  proprietor,  in 
the  doctrine  of  agency, 
ts  of  his  servant  in  the 

V.  Shay,  7  C.  L.  N.  152. 

e  liable  in  criminal  prosecn- 
>r,  33  la.  195.  And  assuming 
y  will  not  exonerate  one  from 
messenger,  as  in  transmitting 
the  money  from  the  buyer  to 
the  statute.  Com.  v.  Wil- 
People,  3  West.  M.  Jur.  723. 
I  him  from  selling  in  his  shop 
11.  V.  Tinkham,  14  Gray,  12. 
acts.  Eoberts  v.  O'Connor, 
It  in  a  social  club,  who  deals 
[ercer,  32  la.  405,  and  of  the 
i  Ind.  21 ;  Com.  v.  Smith,  102 


INTOXICATING    MQUOKS. 


lit 


I 


course  of  his  employment,  has  been  strictly  applied.     One 
engaged  in  the  sale  of  intoxicating  licpiors  is  held  responsi- 
ble for  the  acts  of  his  servants  in  that  business,  even  though 
in  the  particular  transaction  they  disobeyed  his  instructions. "' 
"No  man,"  says  Cooley,  C.  J.,  in   a  leading  case   under 
these  statutes,'"  "  can  l)e  excused  from  responding  for  the 
ne<digent  conduct  of  his  servant  because  of  having  instruct- 
ed'^ hiin  to  be  careful,  or  for  his  frauds  because  of  hi'  ing 
told  him  to  be  honest."     He  is  not  liable  for  wrongs  done 
by  the  servant  outside  of  his  employment ;  but  he  is  respon- 
sible for  everything  arising  in  the  course  of  his  business,  and 
the  fact  that  b<:  gave  orders  to  the  contrary  docs  not  relieve 
him  from  liability  if  they  be  disobeyed ."«  It  is  essential,  how- 
ever, that  the  sale  should  have  been  with  the  lonsent  of  the 
owner  or  servant,  and  a  subseepicnt  ratification  will  not  render 
him  liable.     The  case  of  Kreiter  v.  Nichols^'"  is  in  pc.int 
here.     In  this  case  the  evidence  showed  that  the  intoxicating 
liquors  were  not   furnished  to  the  husband  of  the  plaintiff 
by  the  defendant  himself,  but  that  he  refused  to  let  him 
have  the  liquor,  and  instructed  his  servants  to  do  the  same, 
Avhich  they  did.     It  appeared,  however,  that  the  defendant 
kept  a  grocery  store,  at  which  liquors  were  sold,  and  he 
was  alscT  a  brewer  of  lager  beer,  and  it  was  not  disputed 
that  the  husband,  who  had  been  an  employee  of  defendant, 
had  procured  liquor  at  the  store,  and  had  drunk  beer  at  the 
brewery  on  several  occasions.     The  trial  judge  charged  the 
jury  that  the  defendant  would  be  liable  for  the  sales  in  vio- 
lation of  his  orders,  if,  when  he  found  it  out,  he  charged  the 
liquors  to  him  and  deducted  the  amount  from  his  wages.    On 
appeal,  the  judgment  was  reversed  for  error  in  this  instruc- 

■^epeterson  v.  Knoble,  35  Wis.  80;  Smith  v.  Reynolds,  8  Hun,  128; 
Keedy  v.  Howe,  79  111.  133. 

37  Kreiter  v.  Nichols.  28  Mich.  496.  But  see  Oviatt  v.  Pond,  29  Conn.  479. 

38 But  in  criminal  prosecutions  the  rule  is  different;  and  if  a  servant 
sell,  in  violation  of  law,  without  the  knowledge  and  against  the  instruc- 
tions of  his  employer,  the  latter  is  not  responsible.  I.athrope  v.  State. 
51  Ind.  192;  O'Leai^  v.  State,  44  Ind.  91;  Wreidt  v.  State,  48  Ind.  r,:u. 

3928  Mich.  496. 


•20 


ISTOXKATINU    MQl'OKS. 


,i,.„     The  rcu.l  hM  that  uo  8Urh  i.rin.-|ph',  as  ahove  statcl, 
,.,„,l  ,,0  applicl   to  the  rase  of  a  pyrson  who,  w.t   ou     ho 
pennissh.n   ..f  th.  owner,  obtains  h.s   hquor.  an.l  that  tlu 
•act  of  the  owner  dcn.an.lin,!.-  and  receiving  pay  lor  .t  eoi.lcl 
not   make   him  a  wronjr-.loer  in  the  ori,M,.al  trespass  on  In. 
,i.,hts      -  Hv  th.«  statnto  law  .>f  this  state,"  say  the  eoiui, 
*.;.  well    as   l.v  the  common  law,  beer  is   rc-ogm/cl  as 
pn.pertv,   and  "the   l.vewinjr  ofl.ecr   is  a  lawfnl   busmess 
The  law  protects  this  pn.perty  precisely  as  .1  i.rote<ls  any 
otho-  lawfnl  pn.(Uu-t.    If  one  steals  it  from  the  owner,  ho  .s 
punished   for  it ;  if  ho  converts  it  to  his   own   use  m  any 
lorn.,  a  civil  action  will  lie  to  recover  from  lun.  the  value. 
And  this  <-ivil  action  would  not  depend  in  any  degree  upon 
the  method  or  purpose  of  the  conversion.     ^^  hot  her  de- 
stroyed from  a  belief  in  its  deleterious  ef..cts,  or  nnule  way 
withincan>usals  or  private  drinking,  the  lega   respons.bd.ty 
o  pay  for  its  value  would  be  the  san.e.     And  .t  wdl  scarce- 
y  le'disputed  that,  in  this  case,  if  defendant's  staen.ens 
truthful,  he  nnght  have  recovered  from  the  1^- --y  - 
value  of  the  beer,  on  the  same  grounds  prec.selj    as    he 
nihWit  have  recovered  for  any  unlawful  conversion  ot  other 
nropertv.     But  if  defendant  might  lawfully  recover  tor  the 
lonlerJion,  he  might,  also,  lawftdly  settle  t^,r  .t.     Ho  dc^s 
not   thereby  sanction   what  was   or.gmally  done ;    but   he 
makes  one  who  has  done  him  a  wrong  compensate  h,m  toi 

^']^rL  nocessarv  that  the  party  selling  should  compel 
the  purchaser  t..  drink,  or  x.se  auy  art,  device  or  tru-k,  o 
cause  him  to  l>ecomo  intoxicated,  or  know  that  he  would 

TFc%'"*r/*e  Joint  Liability  of  Several  Sellers^-A  seller 
of  intoxicating  liquors  by  which  another  is  injured  m  per- 
son, propertv  or  means  of  support,  is  not  released  from  ha- 
biliv  if  a  part  of  the  li.iucn-s  causing  the  intoxication  was 
^i;;  o^iirs.  He  is  liable  if  he  contributed  to  the  result." 


INTOXICAriNC    I.K.UOltS. 


21 


pic,  iirt  al)(»v('  stiitt'«l, 
on  who,  witliout  the 
li(|U()r.  and  tliiit  the 
vin<''  \>!iy  for  it  ronld 
"•i.iiil  tn-spiiss  on  his 
tate,"  say  the  coiu-t, 
ivv  is   recojrnized  as     j 
^   a  lawful    business.      ) 
I'lv  as  it  protects  any 
Voni  the  owner,  ho  is 
his   own   use  in  any 
[•  from  him  tlic  value. 
(1  in  any  dejrrce  upon 
Tsion.     Whether  de- 
1  etijcts,  or  made  way 
lie  legal  responsiltility 
I.     And  it  will  scarce- 
fendant/s  statement  is 
•om  the  husband   the 
lunds  precisely  as    he 
ul  conversion  of  other 
iwfuUy  recover  for  the 
;ettle  for  it.     He  does 
iinally  done;    but    he 
\if  compensate  him  for 

scHin<r  should  compel 

art,  device  or  trick,  to 

r  know  that  he  would 

vera!  Sellers,— A  seller 
)ther  is  injured  in  per- 
s  not  released  from  lia- 
i<>-  the  intoxication  was 
itribntcd  to  the  result." 

intiiiu  V.  Diaper.  49  Incl.  441. 


Tills  proceeds  upon  the  well-settled  principle,  thai  where  a 
pcr.-on   undeilakcs  to  do  an  unlawful  act,  which  will  re>ull 
in  injury  to  another,  and  uses  the  means  calcnlated  to  pro- 
.liice"  sucharesidt,the  fact  that  other  persons  may  have  been 
eniraged    iu   producin;!  the    same  result    will  not   exoui'rate 
him  from  the  consetpn-nces  of  his  act.      From  his  usin<--  the 
means,  the  law  presumes  not   oidy  that  he  intended  to  pro- 
duce the    result,    l)Ut   that    the  connnon    intent   which  will 
create  nuitual   liability  exists  without    proof  of  a  previous 
ajrreemeiit,  ov  a  connnon  understanding,  when  tie  meai\s 
employed  Iciid    to    that   infi-rence.     Therefore,   it   v.ill    not 
avail   the    defendant    to    show  that   others    sold    t'lc    party 
li(|Uor  which  may    have  contributed    to   his    intoxication.^'^ 
"  If  two   persons  willfully  administer   distinct    portions  to 

^-"llacki'tt  V.  Snu'lsoy.  77  IU.  10!);  Kinory  v.  AMU.  »1  ('li.  I..  N.  ;«•'-• 
The  rule  in  criminal  ia<v  is.  that  if  i.oisons.  conihiniii-,'  in  intent,  pcr- 
forn.  a  criminal  act  jointly,  the  -nilt  of  each  is  the  siime  as  if  he  had 
(lone  it  alone,  and  it  is  the  siinie  if.  the  act  being  divided  into  parts,  each 
pioeeeds  with  his  several  part  unaided.    And  if,  while  persons  ar(>  doinj? 
wiiat  is  erindnal,  another  joins  them  btdore  the  crime  is  completetl.  lie 
becomes  Ruiity  of  the  whole;  because  he  contribut.'d  to  tlie  restdt.    But 
if.  in  these  cases,  there  is  no  mutual  understanding  of  each  other's  pur- 
pose, each  who  contributed  to  the  result  will  be  resiionsible  simi)ly  for 
what  he  personally  meant.    1    Bishop  on  Crim.  Law.  (;;iO,  Mi.     Ho  m11 
joint  tort-feasors  are  jointly  liable  where,  in  legal  considenilion,  the  net 
complained  of  nnght  have  been  connnitted  by  more  than  one,  and  a  joint 
action  may  be  brought  against  several  for  an  assault  and  battery,  or  a 
malicious  "prosecution.    Tlie  (luestion  of   tlie  joint  liability   of  several 
sellers  of  liquors,  under  the  statutes,  has  generally  been  decided,  wlien 
not  specially  enacted,  upon  the  common-law  principle  governing  the 
liability  of  joint  tort-feasors.    But  it  is  submitted  tliat  the  rule,  as  stated 
in  the  text,  having  regard  to  the  result  and  the  se[)aratiou  of  the  dam- 
ages, is  the  correct  one.  The  case  of  Stimev.  Dickenson.  :.  Allen,  •2!Mias 
been  looked  upon  as  settling  the  question.    Nine  dilVerent  creditors 
wrongfully  sued  out  writs  against  their  debtor:  i)laced  tlicm  in  the  hands 
of  the  same  ofHeer,  who  arrested  the  debtor  on  all  the  writs  at  the  same 
time;  each  creditor  being  igniu'ant  of  what  the  other  was  doing;  it  was 
held  that  they  wei'e  jointly  or  severally  liable,  though  there  was  no  pre- 
concerted .action.    Bigelow,  C.  J.,  said:  "As  a  nnitter  of  Hrst  impres- 
sion, it  would  seem    »    *    *    they  could  not  be  regarded  as  co-tres- 
passers in  the   al)senee  of  proof  of  an  intention  to  act  together,  or  of 
knowledge  that  they  were  engaged  in  a  common  enteriirise.     But  a  care- 
ful consideration  of   the  nature  of  the  action  and  of  the  wrong  dor,- 


INTOXICATINd    LIQUORS. 


22 

ll,,l    m-Mm-  ..fill.'  l>"'-ti'-  '■""  !"■  l"""-l"''l.    """""" 

.„•  n,<MT  .'la»»o»  of  li.|.uir  al  son.-  pla.-r  ..tb.T  tliai  ..I    U 

,H„,nK  that  the  several  par  le.  J,     .      „,i  m  eu„c.-rt,  or  know- 

„aHs..r«.  l..H.a«se  U  doc.  not  a,>, .  ar  ^'"^^^     >  3^.^,,.,  ,,.  ,„o^vl...l«o  l« 

not  .•sBontlal  to  the  co„wnlssi,.n  o  '^  '^'J  *',7;;,,  „,  j,„t  ,..  motlou 
„„.,  ,,„  ,11  ..ultml  h.  the  V  n.ngful  '  •  ' ''  ^^  ,i  "A  h.-n  jointly  liahlo 
,U..  .,on..y  hy  >vhH.  It  -^  —  ^  ^  ^  *;  :;:::;"eaLs  haJ.  heou  cited 
to  the  iH-rson  li.jurc.l.      On  th    otlu    i  a  ^  p^.„,„,  n,,-,. 

n.c..tahllshln«ac..ntraryd..ctrnc.     ''^^ '^j'';'    j  ;;^^       „,,.  f,„„uJ  in 

u  .a.  held,  that  ^;;:^^^:;%^:z';^;:^.^.u. ..  ti.  m. 

ciui.at.y  .M.sagcd  In  kUlIng  «  »; J  '  '  ,,.„re  In  this  case,  the  trial  conrt 
j„,v  done  hy  »-•>- ^^;;  :^  J^.I"':^,,l:;ie  topayforanthd^ep 
Instructed  the  jury     that  t  u  tlet      u  between  the  tlrst 

of  the  plalntltr  which  '-  ;;X^;"  H  '^/'^^^^^^^^^  a  Contrary  InBtrnction 
of  July  and  the  first  of  October.  '»    '    ^^  ^le  for  the  injury  done 

..Ued  l,y  ^^^^^^^^!^-^J:r:>^^.:^::^iL^a  J.  charged 
by  his  own  dog.'  etc.  .Tewett,  •'•'^'^'"  ilofendant  the  value  ot 

that  the  plalntitV  was  entitled  o  ^««°  °  «^,f;^.  ^.^^^^^^  j,  ^he  case,  they 
nil  the  sheep  of  the  plaintlft  w  dch,  f.on    the  cUOe^^^^^^^  ^^^^^^  ^^^ 

^vere  satisfied  the  J^'f^"^!'^"^^  ^^«S^'\^,  i^^toj  ird^S  for  any 

^vas  not  accountable  for  such  '^^^^l^'^J^^^^^^^^.'^f,,^^^^  his  own." 

aan.age  done  the  y^^^^^^^^l^Z^^ol  tl.at  separate  own- 
To  this  and  other  cases  of  "^'^  '^^'';''^;'^^^'^;;^^^  ,  .,„.je,  ..mtly  committed  by 
ev-  are  not  at  common  law  jointly  lu.ble  foi  '»]""«« J*^'     \    ^^^    transac- 

;i..n-  respective  animals  though  ll^^^'XfoK;  ^tdl^rcommltted 
tion.    In  such  cases  each  7'7^.  "^  \^     ;;;     /^^    erm^  it  to  run  at 

bv  his  own  animal,  because  of  his  "'^  '"•;  '  'jj^^^^^  ^,  the  ani- 
lurge.  This  neglect  is  the  ground  of  the  «;^ '"^  ? '7\"^\^^  „,,,^er.  and 
n.aU  are  supposed  to  be  under  the  ^^^l^^^^l^:"^  furtherance 
Uis  negligence  is  distinct  from  hat  of  ^^^  ^^^^^^^^^^^  ,,,,  ,„.„ng- 

of  a  conmion  object,  tliey  can  not  be  f^f  ^  ,  ,'    \^,„,,ges  are  not  the 

*"^  ""^'^";f  ?t^':rsr  irr:  -ri.:^^e::^of ..  ow..rs 

direct  result  of  tiie  act.     ^"^"^^^  '%"  ^f  such  animals  keep 

in  the  trespass.    If,  howev^.s    '«  ^^  ^^'^^^   ^J^  one  herd  or  body, 
tliem  in  common.  '"'^  /"f  ^     Ti  InmVes  by  the  united  trespasses  of 

r.f:;':/t?ar£  r";^:.^,  o,,. «.  ■«,  b...  v. 

Watt,  27  Ohio  St.  J.V*. 


INTOXlCATINd    I.iyl'OUH. 


23 


,  will  it   1)0  diiiincd 
lishctl,   hcnuisi'  the 
on  a(lininist<'n'<l  hy 
)imil  luul  taken  one 
!e  other  than  at  do- 
ivte  him,  iintl  before 
,f  tlu!  ci\M'.    Tlu-  wrong 
t  hi!  Iiiis  been  imliiwfuUy 
)  piTor  ronsHtH  m  sup- 
it  he  rfganUMl  us  co-triM- 
■Ictl  In  CKiuu-rt,  or  kiiow- 
•coiHHM't  or  ivnowlt'dgo  Is 
)UBS.    It  Is  thi'  fiift  that 
n  foot,  or  put  hi  motion 
iuUts  ih-MU  jointly  liubli" 
,.rul  cases  have  heou  cltt-'tl 
uty  V.  llam.l  Donlo,  IW. 
iM'iil  owners  arc  found  In 
•  Ig  responsible  for  the  In- 
n  this  I'use.  the  trial  court 
iblo  to  pay  for  all  the  sheep 
l)y  (U)}?s  between  the  tlrst 
isl  a  contrary  Instruction 
reable  for  the  injury  tlone 
court  should  have  charged 
ho  defendant  the  value  of 
evidence  in  the  case,  they 
orwouiuled;  and  that  he 
)g  luid  killed,  nor  for  any 
oilier  dogs  than  ids  own." 
swered,  that  separate  own- 
juries  jointly  committed  by 
IS  part  of  a  single  transac- 
for  the  injuries  committed 
1  in  permitting  it  to  run  at 
lor's  liability.    Asthcani- 
jontrol  of  each  owner,  and 
iier,  and  not  In  furtherance 
liable,  because  the  wrong- 
iid  the  damages  arc  not  the 
rring  agency  of  the  owners 
A-ners  of  such  animals  keep 
large  as  one  herd  or  body, 
hy  the  united  trespasses  of 
11,  25  Ohio  St.  -255;  Boyd  v. 


r 

I    ,ts    ..tle..t    Im.l    passed    otl',   he  ol.timu-d    soveml   j^hissos  ot 

'     li.,n..r  from  defendant  whi.h,  together    vith  that  previously 

anmk,  did  eanso  into.xieation,  are  both  of  the  defendants  to 

1,0  deemed  innoecnt,  or  are  they  both  guiltyy  -  *'     Clearlv 

the  latter  rule  innst  be  adoi)ted  in  such  <'asi-s. 

But  a  dillerent  rule  must   b„  adopted  where  the  wron-s 
are  suc-essivo  and  independent ,  thouj;h  eommitted  aj,mmst 
the  same  person.     There  must  be  eoneurront  action,  a  .-o- 
oporation,  or  a  consent,  or  approval,  in  the  a-con.i.bshment 
bv  the  wroiifT-doers  of  the    partienlar  wrong,  u.   ordei-  to 
make  them  jointly  liable.     For    it  has  been   held,  that  a 
joint  action  'may  not  bo  brought  against  a  physician  who 
preseribed,  and  an  ai)othecary  who  put  up  noxious  medi- 
cines     In  an  Iowa  ea8c«  it  was  held  that  the  sale,  by  one 
defendant,  of  Ihiuors  to  the  husband  of  the  plaintiff  became 
an  independent  and  complete  cause  of  action,  and  a  sale  to 
him  of  intoxicating  li.piors  by  another  person  on  the  next 
day,  the  next  week,  or  the  next  month,  would  not  give  a 
joint  ri^-ht  of  action  for  either  the  Hrst  or  last  sale.     Each 
was  complete  in  itself.     This  is  true  where  the  drunkenness 
ccmiphiined  of  was  not  a  single  tit  of  intoxication.^ 

The  rule  of  joint  liability  would  seem  to  apply  specially  to 
a  case  where  several  persons  supply  licpiov  to  one  who  com- 
mits a  trespass  while  in  a  state  of  intoxication,  produced  by 
the  liquor  so  furnished.*'     And  so  it  does,  except  mulerthe 
New  York  statute,  where  it  is  held,  that  a  joint  action  will  not 
lie  against  two  or  more  persons  who  separately,  and  at  ditler- 
ent  times,  and  at  ditierent  places,  have  sold  li<iuor  to  the 
Bume  person,  each  quantity  of  ILpun-  having  contributed  to 
produce   the    intoxication   that  caused   the    injury.         But 
when  any  other  rule  than  that  before  stated  is  adopted,  the 
difficulty  arises  in  this,  that  there  can  seldom  be  any  mode 
of  separating  the  liability   of  the  ditferent  parties.     If  a 

«  Woolheather  v.  Rlsley,  39  la.  486. 
«  La  France  v.  Krayer.  42  la.  14".}. 
«  Jewett  V.  Wanshura,  8  Ch.  L.  N.  324. 
46  Bodge  V.  Hughes,  53  N.  H.  61G. 
■47  Jackson  v.  Brooklns,  5  llun,  530. 


24  INTOXICATIXCJ    LIQUORS. 

do7A"n  sales  are  made  by  a  dozen  dealers,  no  in<iuiry  is  pos- 
sible us  to  the  particular  -lass  of  licjuor  whieh  caused  tnc 
intoxication,  or  as  to  the  particular  drink  from  the  etlect  of 
which  tiie  damage  arose.'«     But  there  may  u:i(h)ul)tedly  be 
cases  where  such  a  separation  might  be  n>ade.     To  take  an 
illustration. *»     A,  on  tlie  first  day  of  January,  sold  a  pmt  ot 
whiskey  to  D,  who  paid  for  it ;  D"s  wife  needed  the  money 
so  expended,  to  buy  bread.    On  the  tenth  of  January  B  sold 
brandy  to  D,  for  which  he  paid  the  money;  D"s  wite  re- 
.niired  the  money  at  the  time  to  pay  for  meat  to  eat.  On  the 
twentieth  of  January  C  sold  a  (piart  of  whiskey  to  1)  and 
received  payment,  and  D's  wife  needed  the  money  to  pur- 
chase  raiment.     On  each  occasion  D  became   mtoxicated, 
und  wasted  so  much  of  the  plaintiff's  means  of  support,  a.s 
he  expended  money  in  the  purchase  of  the  li(iuor,  and  tune 
while  so  intoxicated.    In  such  a  case  it  might  not  be  nnpos- 
sible  to  separate  the  damage  resulting  to  the  plamt.tl  from 
the  acts  of  each.     But  the  case  is  very  ditferent  where  suc- 
i-essive  sales  by  several  have  produced  a  particular  mtoxica- 
tion  from  whidi  the  injury  sued  for  has  resulted  ;  or  where 
the   damaiics   result   from   the    state  or  condition   ot  one, 
caused  by  repeated  sales  for  a  series  of  yearn.     To  state 
the  rule  i)f  joint  liability  which  should  govern  m  this  .lasr; 
of  cases  brietly:    1.  If  the  defendant  is  the  sole  cause  oi 
the  intoxicaticm,  he  is  lialde  for  all  the  damages  resulting, 
2.    If  some  of  the  injury  is    caused  l)y  others,    he  is  not 
liable  for   damages  resulting  from  their   sales.     3.  But  i1 
the  damages  can  not   be  separated,  then  he  will  be  liabh 
for  all  injuries  to  which  he  has  contributed. 

Where  all  are  considered  as  joint  wrong-doers,  and  eacl 
is  liable  for  the  injury  done  by  all,  all  may  be  sued  together 
„r  one  or  any  number  of  them  separately  ;  but  there  can  b, 
but  one  satisfaction  for  the  injury.'^  A  plaintiffcan  collect  bu 

48  Kearney  v.  Fit/<>eri»ld  (la.) .  June  Tenii.  1S70. 
4!)  Bovd  V.  AVatt,  27  Ohio  St.  259 ;  S.  c,  3  Cent.  L.  J.  7oO. 
snKeiiruey  V.  Fitzgerald.  Supreme  Court  of  Iowa,  not  yet  reported 
Emory  v.  Addis.  3  Oli.  L.  N,  330. 


lis. 

rs,  no  iiKiuiry  is  pos- 
iior  whifh  oauseel  the 
ink  from  the  etlbct  of 

may  undoubtedly  be 
le  made.     To  take  an 
anuary,  sold  a  pint  of 
ife  needed  the  money 
nth  of  January  B  sold 
money;  D's  wife  re- 
or  meat  to  eat.  On  the 
of  Avhiskey  to  1)  and 
ed  the  money  to  pur- 
)  became   intoxieated, 
i  means  of  support,  as 
)f  the  Tuiuor,  and  time 
it  might  not  be  impos- 
ir  to  the  plaintitV  from 
■ry  dirterent  where  suc- 
■d  a  particular  intoxica- 
has  resulted  ;  or  where 
i  or  ctmdition   of  one, 
L's  of  years.     To  state 
dd  govern  in  this  .-lass 
lit  is  the  sole  cause  of 
the  damages  resulting. 
1  l)y  others,    he  is  not 
their   sales.     3.  But  if 
,  then  he  will  l)e  liable 
•ibuted. 

wrong-doers,  and  each 
1  may  be  sued  together, 
rately  ;  but  there  can  be 
fV  plaintitfcan  collect  but 

1.  1870. 

Cent.  L.  .J.  750. 

t  of  Iowa,  not  yet  reported; 


INTOXICATING    LIQUOKS. 


25^ 


one  sum,  though  f'cveral  amounts  maybe  awarded  him  in 
dillerent  actions.  He  is,  however,  entitled  to  tli^  costs 
in  each  suit.''^  But  if  he  has  prosecuted  several  jointly, 
and  the  jury  has  assessed  a  different  sum  as  damages 
against  eacli  defendant,  the  plaintitf  may  enter  judgment 
against  all  for  any  of  the  amounts  as  he  elects. '- 
"on  the  othp'-'nmd,  where  each  seller  is  liable  for  the 
injuries  produced  by  himself  only,  settling  with,  or  suing 
one,  will  not  release  the  others.'^' 

The  common-law  doctrines,  concerning    the  liability  of 
tort-feasors,  and  as  to   the  joinder  or  separation  of  them 
in   aciions  brought  to  recover  damages   for  the  wrong,  are 
not  allected  by  the  new  system  of  procedure  introduced  V)y 
the  codes. '^     The  question  of  misjoinder  may  be  raised  l>y 
demurrer,  or  the  parties   may  apply  for  a  severance.      A 
neglect  to  demur  does  not  waive  this  ol)jection  ;  as,   untler 
the  codes,— and  in  nearly  all  of  tne  states  where  this  action 
is  allowed,  codes  of  procedure  are  in  force,— the  defendant 
may,    at  the  trial,  interpose  the    same    objection   to    tlie 
plaintiff's  recovery,  though  he  has  omitted  to  allege  it  on 
the  record,''^     Whether  re  will  be  for  the  interest  of  a  de- 
fendant, where  several  are  joined,  to  obtain  a  severance, 
will  depend  upon  the  particular  case.     Though,  as  there  can 
be  but  one  satisfaction,  it  would  seem  to  be  to  his  interest 
to  remain  where  he  will  have  to  assume  but  a  share  of  tlie 
damages  and  costs.     But  it  may  happen  that  his  connection 
with  The  injur},  to  the  plaintiff  has  been  only  slight,  while 
that  of  his  co-defendants  may  have  been  of  such  a  nature 
as  to  sustain  a  claim  for  punitive  or  vindictive  damages  :— 
a  claim  which,  under  some  circums"    ices,  as  will  be  seen  m 
a  subsequent  section,  where  the  (piestion  of  damages  is  more 
fully  considered,  may  be  allowed. 

51  romeroy  on  llenifdics.  ;ill. 

.'••i  First  Xiit.  Hiuik  -. .  Indiiinapolis.  4.")  Ind.  3. 

•wjc'wett  V.  Wanshura.  S  Jli.  L.  N.  :i-24. 

MPoiiH'roy  on  Reiiu'dios.  ;i()7. 

M  lb.  291;  Jackson  v.  Brooking,  5  Hun,  5;«,  and  cases  cited. 


21> 


INTOXICATING   LIQUORS. 


Sec.  i\.--The  Liability  of  Owners  or  Lessors  of  Prem- 
ises.    These  statutes  also,  as  has  been  seen,  give  a  right  of 
action  against  the  owner  or  lessor  of  the  premises,  where 
the  sale  Is  made,  severally  or  jointly  with  the  person  mak- 
ing-  tlio   sale,  where  the  owner  has   leased  or  rented  the 
property  for  such  a  purpose,  or  has  kno\v ledge  that  intoxi-  • 
catinjv  li,i„ors  are  being  sold  therein.^'     While  the  plaintitt 
mav  "bring  an  action  against  the  seller  of  liquors  causing 
intoxication  and  daniaa;e  alone,  and  having  recovered  judg- 
ment, by  another  action  against  the  owner,  enforce  it,  yet 
he  has  the  riirht  to  join  them  in  one  acticm,  and  therein  ob- 
tain complete  relietV"     And  tlie  judgment  so  recovered  may 
be  reversed  as  to  one  and  affirmed  as  to  the  other.'^ 

This  part  of  the  law,  however,  does  not  apply  to  the 
owner    of    premises,    who    himself    sells    liquor    therein. 
Tlierefore,  where  the  owner  sells  in  violation  of  the  act,  he 
is   liable  because  of  his  sales,  and  not   on  account  of  his 
ownership  of  the  premises  in  which  the  sales  are  made  ;  and 
to  proceed  against  him,  under  this  section,  in  such  a  case, 
would  be  improper.-^     What  will   amount  to  "knowingly 
permitting  "  or  "  sutlering  "  intoxicating  liquors  to  be  sold 
in   violation   of  the  statutes,  on  the   part  of  a    lessor   of 
premises,  who  may  have  rented  them  for  legal  purposes,  the 
lessee  subsefiuently  engaging  in  illegal  sales,  has  been  the 
subject  of   considerable  discu.^sion.     Must  he  not,   it  has 
been  suggested,   have  a  present  absolute   right  to  control 
the  use,  before  he  can  ])e  said  to  permit?     Can  permission 
exist   without   active   participation   in   the   control    of  the 
property?     Can  the  law  be  construed  as  laying  hold  of  the 
lessor  as  a  hostage  for  the  lawful  behavior  of  his  tenant, 
and  hold  him  to  knowingly  permit,  where  he  merely  know- 
inL'ly  suffers  the  unlawful  act  to  be  done  by  one  who  has 
exclusive  control    as  against  him   and  all   the  world?     If 


•WBertholf  v.  O'Ueilly.  S  Hmi.  !''• 
5"  Lu  Franco  v.  Kiayer.  42  la.  14:{. 
M  Rentier  v.  Lilly,  20  Ohio  St.  48. 
•w  Barnabv  v.  Wood.  .50  Ind.  40.". 


INTOXICATING    LIQUOUH. 


27 


r  Lessors  of  Preni- 
seen,  give  a  right  of 
the  premises,  where 
rith  the  person  mak- 
eased  or  rented  the 
;0\v  ledge  that  intoxi- 
While  the  phiintitt 
I-  of  liquors  causing 
ving  recovered  judg- 
vvner,  enforce  it,  yet 
tion,  and  therein  ob- 
ent  so  recovered  may 

0  the  other.'^ 

es  not  apply  to  the 
;ells  liquor  therein, 
jlation  of  the  act,  he 
)t  on  account  of  his 
e  sales  are  made  ;  and 
iction,  in  such  a  case, 
lount  to  "knowingly 
ing  li(iuors  to  be  sold 

part  of  a  lessor  of 
■or  legal  purposes,  the 
il  sales,  has  been  the 

Must  he  not,  it  has 
)lute  right  to  control 
niit  ?     Can  permission 

1  the   control   of  the 
as  laying  hold  of  the 

ehavior  of  his  tenant, 
here  he  merely  know- 
done  by  one  who  has 
lid  all   the  world?     If 


obliged  to  resort  to  law  for  an  injunction  to  restrain  or  to 
compel  a  forfeiture,  the  breach  of  duty  being  of  conditions 
subsequent,  will  not  the  very  law  which  exacts  a  resort  to  it, 
apply  the  strictest  rules  to  the  lessor's  case,  and  estop  him 
from  a  remedy  upon  the  slightest  grounds  of  acquiescence, 
such  as  once  accepting  rent  after  having  reasonable  grounds 
to  believe  in  the  existence  of  the  unlawtul  user,  or  deny 
him  relief,  except  upon  proof  beyond  a  reasonable  doubt  ?«" 
It  is,  we  apprehend,  a  sufficient  answer  to  this  objection  to 
say  that  the  owner  is  entirely  protected,  under  the  very 
sections  of  the  statutes  creating  his  liability,  by  the  forfeit- 
ure which  ensues  upon  the  sales  being  made  by  the  tenant. 
He  is  not  recpiired  to  move  until  the  forfeiture  is  complete, 
and  he  will  not  be  held  liable  unless  he  does  some  aitirma- 
tive  act  signifying  his  assent  to  the  use  of  his  property  for 
such   purposes,   or   his    permission   for   its   continuance. ''^ 
Mere  inactivity  on  his  part  to  find  out  the  tact,  or  a  failure 
to  take  steps  to  prevent  such  a  use  of  the  premises,  will  not 
render  him  liable.**''   The  permission  to  occupy  the  premises, 
with  knowledge  that  intoxicating  liquors  are  to  be   sold 
therein,  constitutes  the  basis  of  the  liability   imposed  by 
the   act.     Neither  the  permission  nor  the  knowledge  is  to 
be  presumed  or  inferred,  but  should  be  established  l)y  clear 
and  satisfiictory  proof.     It  is  doubted  whether,  considering 
the  relations  of  the  parties,  the  occupation,  by  the  husband, 
of   premises    belonging  to  his    wife,   where    he  and  she 
reside,  is  such  a  permission  to  occupy  as  would  make  her 
liable  under  the  statute.     And  it  has  been  held  that  from 
the  mere  fact  that  the  wife,  the  owner  of  the   premises, 
lived  with  her  husband  in  a  hotel,  it  could  not  be  inferred 
that  she  had  knowledge  that  intoxicating  liquors  were  sold 
therein,  it  not  being  proved  that  she  ever  witnessed  a  sale, 
or  had  ever  been  present  in  the  bar-room  where  the  sdes 
were  made,  or  had  ever  given  her  consent  that  such  sale 

60  Granger  v.  Knipper,  1  Cin.  (S.  C.)  480. 

61  State  V.  BalUngall,  42  la.  87. 
6'^  State  V.  Abraham,  6  la.  117. 


I-       A- 


28 


INTOXICATING    LIQIJOUS. 


!^h()ul(l  be  made,  or  that  i^lu"  was  inlbniiod  that  thoy  wi'iv 
ill  fact  inado,  or  of  any  circumstances  tending  to  induce 
such  an  inference.'"'  But  general  reputation  of  the  phice 
being  used  for  the  purpose  of  selling  spirituous  li(|Uors  is 
admissible  on  the  tiuestion  of  the  defendant's  knowledge."^ 
Where  it  was  proved  that  the  defendant  by  a  written  lease 
let  a  building  to  one  F  for  the  sale  of  licpior,  on  an  under- 
standing that  F  was  to  occupy  it  for  that  purpose,  and  F 
did  occupy  it  for  that  purpose,  it  was  held  that  such  facts 
would  sustain  an  allegation  of  "  suifering "  the  premises 
to  be  occupied  for  the  purposes  named,  as  well  as  an  alle- 
gation of  "  letting  "  for  a  like  purpose."* 

Again,  a  landlord  certainly  has  power  to  prevent  the  use, 
by  his  lessee,  of  his  property  for  illegal  purposes,  as  he 
has  power  to  restrain  the  use  of  his  property  for  a  purpose 
diUcrcnt  from  that  for  which  it  was  leased,  or  for  a  purpose 
which  may  render  it  dangerous, '«  and  this  on  general  prin- 
ciples,  without   regard   to  the  statutory  provisions  which 
declare  a  forfeiture,  and,  in  one  case,  expressly  empower 
the  court  to  enjoin  this  particular  use  of  property."'     And 
where  a  landlord  seeks  to  avoid  a  lease  for  a  violation  of  the 
act  on  these  grounds,  the  defendant  can  not  prevent  such 
avoidance  by  showing  a  payment  of  rent  for  the  entire  term.*^ 
The  Ohio  law  provides  that  all  contracts,  Avhereby  any 
building  or  premises  shall  be  rented  and  leased,  and  used 
or  occupied    in  whole  or  in  part   for  the  sale  of  intoxi- 
cating  liquors,  shall  be   void,   and  the  person  renting   or 
leasing  the  premises  shall,  upon  such  a  sale  taking  place, 
be  considered  and  held  to  be  in  possession  of  the  prcm- 
The   existence  of  two    conditions   is  necessary  to 


ises. 


(i8 


render  a  contract  void  under  this  statute. 


The  building 


«i  Mciul  v.  Stratton.  S  lliin,  151. 
<^<  State  V.  Shanalian.  .'4  X.  II.  4;57. 

>»■>  Bonnet  V.  Sa.Uer.  1-1  Vo.<.  'rH<\  -Mayor  v.  Bolt.  5  Ves.  120. 

<"  Micti.  Stats.,  nitjifii. 

<^  .McGarvcy  v.  Pmketl,  27  Ohio  St.  CG9. 

"'^(Jhio  Law.  supra. 


\ 


INTOXICATING    LIQIJOIIS. 


2!) 


nod  tlmt  tlioy  wt'ic 

tcMidlng  to   iiuluce 

tation  of  the  place 

ipirituous  li(|Uors  is 

idaiit's  knowlcdjro."^ 

t  by  a  written   lease 

liquor,  on  an  undov- 

hat  purpose,  and  F 

lield  that  such  facts 

i-ing"   the  premises 

I,  as  well  as  an  alle- 
le 

f  to  prevent  the  use, 
gal  purposes,  as  he 
operty  for  a  purpose 
sed,  or  for  a  purpose 
this  on  general  prin- 
ry  provisions  which 

expressly  eni[)ower 
of  property."'  And 
for  a  violation  of  the 
an  not  prevent  such 
for  the  entire  term.'^ 
iitracts,  whereby  any 
ind  leased,  and  used 
•  the  sale  of  intoxi- 
e  person  renting   or 

a  sale  taking  place, 
session  of  the  preni- 
ions  is  necessary  to 
te.     1.  The  building 


jlt.  5  Yes.  120. 


or  premises  must  have  been  rented  or  leased  for  the  sale 
of  intoxicating  liquors.     2.    The  leased  property  must  1)6 
used  or  occupied  for  that  purpose.     The  mere  use  or  occu- 
pation of  the  property  by  the  tenant  for  the  purpose  indi- 
cated is  not  enough  ;  it  must  have  been  contemplated  at  the 
time   of  the   making   of  the   lease.      Neither    is  it    sutH- 
cient,  that  such  a  use   of  the  lease  was  contemplated  at 
the    making    of    the    contract    by  the    tenant;    it   must 
have  been  known  to  the  lessor.     From  its  wording,  the 
meaning  of  the  statute  is  very  ambiguous  ;  but,  as  used  in 
this  section,  the  lessor  is  the  actor,  and  it  h  the  lessor,  and 
not  the  lessee,  who  is  "  to  be  considered  and  held  to  be  in 
possession,"   on  and  after  the  sale.'"     The   dillerence  be- 
tween this  section  and  the  sections  contained  in  the  several 
aits,  in  relation  to  forfeitures  is,  that  in  the  other  cases  the 
use  of  the  premises  by  the  tenant  for  the  sale  of  intoxica- 
ting liquors  renders  the  lease  void  at  the  election   of  the 
lessor,   while  in   this  the   lease  becomes  void   as  to  both 

parties  .^^ 

The  word  "premises,"  as  used  in  the  statutes,  includes 
lands  and  tenements.  Therefore,  a  justice  of  the  peace  in 
most  of  the  states  would  not  have  jurisdiction  in  an  action 
against  the  owner  or  lessee  of  premises,  who  knowingly 
permits  li(iuor  to  be  sold  therein,  wherel)y  injury  is  sus- 
tained, such  an  action  being  one  in  which  the  title  io  real 
estate  is  drawn  in  (luestion.'-  If  the  sale  be  nuide  upon 
any  portion  of  the  property  leased,  it  works  a  forfeiture  of 
the  whole.  Therefore  where  the  act  which  it  was  claimed 
forfeited  the  lease  was  committed  in  a  grocery  store  upon 
the  property  leased,  judgment  was  held  to  be  properly  ren- 
dered by  the  restitution  of  the  whole  premises  of  350  acres.'" 
The  provisions  of  the  statutes  declaring  thtit  real  estate 
not  owned  by  the  seller,  but  wherein  the  sale  is  made,  shall 

ToZink  V.  Grant.  25  Ohio  St.  ;t.V.J. 
'i.Tnstice  V.  Lowts  20  Oliio  St.  ;57;J. 
ii'^  Bowers  v.  Poiuevoy,  21  Oliio  St.  184. 
■■JMcGiu-vey  V.  Pufkett,  27  Ohio  St.  072. 


\ 


80 


INTOXICATING   LIQUORS. 


1,1.  hold  liable  for  tho  payment  of  a  judgment  against  mm, 
do  not  create  a  lien  upon  the  property,  but  simply  author- 
ize it  to  be  subjected  to  the  payment  of  the  judgment  in  a 
suit  acniinst  the  owner,  instituted  for  that  purpose.     Until 
the  commencement  of   a  suit  against  him,  the  judgment 
creditor  aeciuires  no  interest  in  the  property  ;  and  it  bctore 
the  suit  is  brought  it  has  been  sold  and  conveyed,  it  can  not 
be  subiectvd  to  the  payment  of  such  a  judgment.     To  con- 
strue the  statutes,  so  as  to    make  a  judgment  against  the 
seller  a  lien  on  the  pr..p*"rty,  either  from  the  rendition  of 
the  judgment  against  the  seller  of  the  liquor,  or  from  the 
time  the  action  accrued,  would  render  titles  to  land  very 
in«^ecure.     No  on<'  could  safely  purchase  real  estate  on  the 
taith  of  the  records  showing  that   it  was  free  from  incum- 
brances.    He  would  be  obliged  to  search  for  the  previous 
occupiers   of  the  property,  and   to  ascertain  whether  any 
judgments  or  causes  of  action  existed  against  them  while  in 
possession  .'^ 

The  statutes  of  Illinois,  Iowa,  Kansas,  Michigan,  New 
York  Ohio  and  Wisconsin,  give  a  right  of  action  for  three 
separate  descriptions  of  injury  caused  by  the  sale  of  intox- 
icating liquors,  viz.  :  Injury  to  the  person,  to  property,  and 
to  means  of  support. 

Sec  7.  Injuries  to  the  Person.— To  sustain  the  action 
for  injuries  to  the  person,  an  assault,  or  some  actual  vio- 
lence, or  phvsical  injury  to  the  person,  or  health,  must  be 
shown.''*     So,  where  the  plaintiff  charged  that   in  conse- 

74  Bi'lliuger  v.  Griffith.  23  Ohio  St.  C19. 

'SMulford  V.  Clewell.  21  OliioSt.  193. 

Uader  a  iatute  of  Missouri,  mailing  it  a  ground  for  divorce  at  the  sn  t 
of  a  vSe.  if  the  husband  shall  "  offer  such  indignities  to  her  person  as  to 
render  hr  life  and  condition  intolerable  and  burdensome,"  it  was  he  d, 
fn  Cheatham  v.  Cheatham,  10  Mo.  296,  overruling  Le^yls  v.  Lewis  o  Mo 
278  that  xmfounded  charges  made  and  repeated  against  a  wife  by  her 

S>!b'ndVcllc«lated  to  render  her  life  -^-f^^^^'^'^^Zl^Xf^^t 
^•oundforthe  in-anting  of  a  decree.    "If  mere  words,    say  the  couit, 
^:m  ton  tttute'the  indignities  to  the  Pe-n -""r^^iT^^ 
by  what  standard  of  refinement  shall  the  offended  sensibilities  of  the 


^tM 


INTOXICATING   LIQIOUS. 


.'.1 


;ment  against  him, 
but  simply  author- 
tho  judgment  in  a 
at  puvpose.     Until 
lim,  the  judgment 
orty  ;  and  it*  l)cfoi'e 
jonvcyt'd,  it  can  not 
ndgment.     To  con- 
dgmcnt  against  the 
nn  the  rendition  of 
liquor,  or  from  the 
titles  to  land  very 
[>  real  estate  on  the 
as  free  from  incum- 
i-ch  for  the  previous 
■ertain  whether  any 
gainst  them  while  in 


sas,  ISIifhigan,  New 
it  of  action  for  three 
by  the  sale  of  intox- 
ion,  to  property,  and 

o   sustain  the  action 

or  some  actual  vio- 

1,  or  health,  must  V)e 

irjred   that   in  conse- 


Lind  for  divorce  at  the  s\iit 
gnities  to  her  person  as  to 
mrdensome,"  it  was  held, 
ing  Lew-is  v.  Lewis,  5  Mo. 
ted  against  a  wife  by  her 
able,  were  not  a  sufficient 
ere  words,"  say  the  court, 
mentioned  by  the  statute, 
rended  sensibilities  of  the 


(,uenco  of  his  intoxication  her   husband    at  times  became 
delirious,  wild  and  dangerous,  compelling  her  to  nurse  and 
attend  him,  and  that  she  had  been  put  to  much  fear,  and 
had  been  forced  to  abandon  his  house  on  account  of  his  bad 
conduct   and    disagreeable  society,   but  complained  of  no 
actual  violence,  it  was  helu  that  the  action  could  not  be  sus- 
tained for  injurv  to  her  person.     ' '  Mortitication  and  sorrow 
and  loss  of  her'husband's  society  is  not  enough.    This  is  her 
misfortune,  for  which  she  has  no  remedy  under  the  law. 
If  she  had   been   attacked   by  her  drunken   husband   and 
iniured  by  his  violence,  she  could  recover."'"     But  under 
the  Wisconsin    statute,   where  the  husband,  while  intoxi- 
cated, without  actual  violence,  l)ut  by  threats  and  a})usive 
language  and  intimidation,  drove  his  wife  out  of  his  house, 
and^kept  her  out  for  several   hours,  it   was  held  that  this 
constituted  a  physical  injury  and  sutfering  sufhcient  to  sus- 
tain an  action.'"  ^^ 

Sec.  8.  Injuries  to  Property .—'Vhe  term  "  property, 
as  used  in  these  statutes,  renuires  no  special  construction. 
Damages  caused  through  the  scjuandering  of  the  money  or 
chattels  of  a  wife,  or  other  person,'^  or  the  value  ot  the 
property  destroyed  by  a  person  while  intoxicated,  may  be 
recovered  under  this  section  from  the  seller  of  the  litpior 
causing  the  intoxication.™  Unlawfully  depriving  a  person 
of  his  money  or  other  property,  upon  general  prmciples, 
creates  a  right  of  action  in  favor  of  the  party  injured,  and 
these  principles  apply  equally  to  the  case  of  one  obtamnig 

female  be  estimated?    Natural  temperament,  education  and  the  assoda- 
lions  of  life  will  very  much  vary  the  degree  of  unhappiness  and  discom- 
fort, which  reproaches  of  this  character  would  be  hke ly  to  produce     If 
words,  unaccompanied  with  actual  violence,  constituted  the  charge  they 
must  have  been  such  as  to  inflict  indignity  and  '^''■'^''''^'^''\^]'^\?- 
duce  a  reasonable  apprehension  of  injury  to  the  person  or  health  ot  the 
nartv  coniDlaining."    Hooper  v.  Hooper,  19  Mo.  .^5.5. 
^I^MuZd  V  Clewell,  21  Ohio  St.  193;  Albrecht  v.  Walker.  Supreme 
Court  of  Illinois,  not  yet  reported. 
"Peterson  v.  Knoble,  35  Wis.  80;  Wightman  v.  Severe,  33  \V,..  .0 
78  Mulford  v.  Clewell,  21  Ohio  St.  197 ;  Henimes  v.  Bentley,  32  Mith.  SO. 
T9  Woolheather  v.  Risley,  38  la.  187. 


1 


82 


INTOXICATINO    LUn^OIlft. 


tho  monov  c,f  another  by  the  unhiwful  sale  of  intoxu-atinir 
liMUors.     Tliercforc  a  party  may  sue  tor  money  paid  dur- 
in.r  a  period  of  time  for  linuor  sold  to  him  in   violation  ot 
the'^o  statutes.     And  the  same  right  exists  ui  tavor  ot  his 
personal  representatives,  it  being  an  injury  to  the  estate  ot 
the  intestate  of  a  proprietary  character,  as  distinguished 
from  a  mere  personal  injury  .-•    No  demand  of  the  chattels, 
or   notice  of  chiim,  is   necessary  before  the   suit    can   bo 
hrou.dit.     An  action  of  this  kind  ditVers  from  an  ordinary 
action  for  conversion  of  property  ;  for  it  is  not  brought  for 
the  vendee's  inversion,  l)ut  for  the  act  of  the  party  making 
away  with  the  property  while  under  intoxication  ettected  by 
the  defendant.     The  wrongful  act  for  which  suit  is  brought 
i.  not  the  conversion  of  the  property,  but  the  sale   ot  the 
liquor  "•      And   where  a   wife  sues  the   vendor  of  liquors 
for  the   value   of  property  belonging  to   her,    which  has 
been  made  away  with  by  her  husband,  while    under  the 
inHuence  of  Ihiuor  supplied  by  the  defendant ;  if,  as  between 
the  plaintitf  and  the  husband,  the  property  was  hers,  whether 
it  would  have  been  hers  as  to  creditors  or  a  purchaser  from 
her  husband  in  possessh.n,  is  not  material ;  for  the  defend- 
ant  in  such  a  proceeding  does  not  occupy  either  of  these 
relations.'^^  Where  the  phiintitT's  son  took  his  horse,  saying 
that  he  was  going  to  visit  a  friend  some  miles  distant,  but 
instead  of  this  went  directly  to  the  saloon  of  one  ot  the 
defendants,  where  he   became    intoxicated,    and  while   in 
such  condition  afterwards  drove  the  horse  so  violently  that 
it   died ;  it   was  held,  under  the  New  York   statute,  that 
an  action  could   be  maintained  against   the  saloon-keeper 
and  the  landlord  of  the  premises  jointly  for  the  value  ot 
the  horse.*'     And  an  action  may  be  maintained  by  a  person 
prevented  from   following  his  usual  occupation  liy  being 
struck,  beaten  or  wounded  by  an  intoxicated  person,  agamst 

s"  Kilborn  V.  Coe.  48  How.  (N.  Y.)  141. 
SI  Mulford  v.  Clewcll.  sHpr«. 
8-2  WooUieatlRM-  v.  Risley.  supra. 
ssBoitholf  V.  O'Koilly.  8  Hun.  II). 


^^ 


IXTCXKATINU    M<ilOI!S. 


as 


iiile  of  intdxiciitiiiir 
11-  money  \yA\<\  tlnr- 
hini  in   violiition  of 
cists  in  favor  of  his 
jury  to  the  estate  of 
r,  as  tlistiiiguished 
land  of  the  chattels, 
•e  the   suit    can   bo 
i-ri  from  an  ordinary 
it  is  not  broufrht  for 
of  the  i)arty  making 
Dxication  ettected  by 
,hich  suit  is  brought 
l)ut  the  sale   of  the 
)   vendor  of  liqiiors 

to   her,    which  has 
d,   while    under  the 
idant, ;  if,  as  between 
rty  was  hers,  whether 
i  or  a  purchaser  from 
irial ;  for  the  defend- 
c'upy  either  of  these 
ook  his  horse,  saying 
10  miles  distant,  but 
saloon  of  one  of  the 
cated,    and  while   in 
orse  so  violently  that 
V  York  statute,  that 
st   the  saloon-keeper 
intly  for  the  value  of 
aintained  by  a  person 

occupation   by  being 
:icated  person,  agamst 


till-    seller   of   the   liciuor    l>y    whirli    the  intoxication    was 
produced,  and  the  owner  of  the  building  in  which  it  was 

Six-.  St.  Injuries  to  M('(nif>  of  Support— Rights  of  \\  {te. 
—The  term  "  means  of  support."    as  used  in  the  statutes 
under  consideration,  has  received  a  ditlerent   interpretation 
hy  ditlerent  courts.     The  wife  is  the  person  whose  damage 
iii  most  cases  is  laid  under  these  words,  and  a  statement  of 
the  application  and  extent  of  the  term  re.|uires  an  exami- 
nation of  the  rights  of  a  wife,  under  the  law,  to  the  support 
of  her  husl)and.     Ib-oadly.  the  phrase  as  used  in  the    stat- 
utes relates  to  whatever  a   husband  might  have  earned  or 
made   by   his  labor  and    attention  to  business,    and    con- 
tributed'to  the  maintenance  of  his  tamily."**     A  husband  is 
morally  and  legally  bomul  to  supply  his  family  with  tho 
necessaries    and   comforts    of  life.     If  he    have   no    other 
resources,  it  is  his  duty  to  contribute  his  labor  and  its  pro- 
ceeds to  their  support.'    A  wife  has  thus  an  interest  in  his 
cai)acity  to   labor,   and   this  especially,  if  she  be  wholly 
dependent.     Therefore,  his  intoxication  of  itself,  as  affect- 
in"-   his  capacity  to  laljor,  gives  her  a  cause  of   action.**^ 
Nor  is  the  liability  of  the  defendant  confined  to  cases  of 
injury  resulting  immediately  from  drunkenness,  or  arising 
during  its  continuance  ;  it  extends  as  well  where  the  injury 
results  from  insanity  or  sickness  produced  by  intoxication.^^ 
Health  is  as  indispensable  to  the  ability  to  labor,  as  is  the 
ability  to   lal)or  to  means   of  support.      To   sustain    the 
action  by  the  wife,  it  is  not  necessary  that  she  has  actually 
been  without  support,  or  at  any  time  in  whole  or  in  part 
deprived    of    support.      Means   of   supixnt  relate   to   the 
future  as  well  as  to  the  present.     It   is   sutficient  if  the 
sources  of  her  future  maintenance  have  been  stopped  or 
diminished  below  what  is  reasonable  for  one  in  her  station 

>^En<rlish  V.  Beiird.  51  Ind.  4S0. 
^sAVightuiun  v.  Devere,  IW  Wis.  570. 
!<i  Sehueiaer  v.  nosier.  21  Oliio  St.  99. 
^  Mulford  V.  Clewell,  21  Ohio  St.  191. 
3 


1 


34 


INTOXICATINO    LUilO«»- 


of  litV.'«     In  Iowa,  tho  ivfusul  of  the  court  l.olow  t<.  clmrgo 
the  iurv  that,  "  if  the  plahitiff  was  in  no  worse  condition 
uftcr,  oV  by  reason  of  the  sale  of  li-iuors  to  her  hn.sl.and, 
than  she  was  before,  she  has  not  sutlered  in  l^^v  "leuti.  o^ 
.upport,  and  can  not  recover  therefor,"  was  hekl  correct- 
So,  in  Illinois,  the  ruling  of  the  trial  J"<|g*''.;"  J'^J^^*;"^ ';;! 
instruction  submitted  by  the  defendant,  that  .1  the  w.fe  had 
sufficient  means  in  her  own  right  to  mai.jt  ui  hcrsel    as 
comfortably  as  she  was  supported  by  her  husband  behno 
the   date   ;,f  the   charges,  or  was  able  and  competent  to 
earti  her  own  livelihood,  she  could  not  nuvintam  the  action 
was  assigned  for  error  but  overruled.     The  Supreme  Court 
said  :  "From  the  eadiest  period  of  the  law,  there  bis  been 
a  le-al  obligation  on  the  husband  to  support  h.s  wife.     JNo 
net  of  the  legislature  of  this  state,  when  this  cause  of  action 
accrued,  had  ever  abrogated  such  law.     It  has  never  been 
annulled  by  judicial  construction,  m>r  do  we  ^^^-g"!^^  " 
courts  the  right  to  amuil  it.     The  right  ot  support  us  not 
limited  to  the  supplying  of  the  ''/^''^  "^^^^f  ^^,;;f^^fj'/ 
but  embraces  comforts  that  are  suitable  to  the  wite  s     t- 
uation  and  the  husband's  condition  in  f  •     «---  ^ 
wife  mav  be  able-bodied  and  can  earn  a  livelihood,  it  does 
not  follow  that  she  does  not  suffer  injury  in  means  of  sup- 
ort  by  loss  of  her  legal  supporter.     Nor  does  it  so  follow 
where   she    may   have    independent    means  of   her  own. 
There  are  always  independent  means  of  support.     No  one 
is  absolutely  dependent  on  another  for  means  ot  support; 
f^  wherthere  \s  the  absence  of  other  means,  it  is  provided 
l>y' public  authority.'-    But  in   a  Wisconsm   case  it   is 
intimated  that,  if  the  husband  when  sober  was  I>hP^<,*»  y 
ncapable  of  performing  any  work  or  labor,  or  attendii^ 
o  any  business,  or  was  of  such  indolent  oyl^f^l^-.^^  f^^^ 
that  he  in  fact  made  his  wife  support  him,  his  -to^-f -" 
would  not  injure  her   means   of  support,  as  used  m  the 

88  Mulford  V.  Clewell,  sujwa. 
wWoollicather  v.  Blsley,  38  la.  189. 
90  Hackett  v.  Sim-lsley,  77  111.  100. 


ourt  below  t<»  clmrgo 
I  no  worse  condition 
ors  to  hor  hn.shiind, 
red  in  her  means  of 
,"  was  held  correct/'-' 
judge,  in  rejecting  an 
,  that  if  the  wife  had 
maint  in  herself  as 
her  husband  before 
le  and  competent  to 
t  maintain  the  action, 
The  Supreme  Court 
le  law,  there  has  been 
upport  his  wife.     No 
Ml  this  cause  of  action 
'.     It  has  never  been 
,r  do  we  recognize  in 
iht  of  support  is  not 
re  necessaries  of  life, 
ible  to  the  wife's  sit- 
in  life.     Because  the 
n  a  livelihood,  it  does 
ijury  in  means  of  sup- 
Nor  does  it  so  follow 
means  of   her  own. 
s  of  support.     No  one 
for  means  of  auppoi-t ; 
jr  means,  it  is  provided 
Wisconsin   case  it   is 
I  sober  was  physically 
or  labor,  or  attending 
jlent  or  shiftless  habits 
i-t  him,  his  intoxication 
upport,  as  used  in  the 


INTOXICATIXtJ    I-IQIOKS. 


35 


statute.''"     And  in  New  York,  the  exposition  of  this  phrase 
in   all  the  other  states  has  been  entirely  dissented  from. 
The  Supreme  Court  of  that  state,  in  one  case,  say,  that 
the  reasoning  adopted  in  the  other  states,  "  if  carried  out 
consistently,  would  result  in  the  tloctrine  that  the  wife  has 
an  interest   in  the  property  of  her   husband,  so   that   she 
could  maintain  an  action  for  its  injury,  as  ho  is  as  much 
bound  to  support  her  out  of  his  property  as  out  of  his 
waiTcs  :  and  that  a  creditor  would  l)e  injured  in  his  means 
of  support  by  the  intoxication  of  his  debtor,  for  the  debtor 
is  as  much  legally  and  morally  I)ound  to  pay  his  creditors 
as  to  support  liis'wife."  ''^     This  extraordinary  ruling  stands 
alone,  and  seems  to  have  been  made  without  any  regard 
to  the  obvious  intent  of  the  framers  of  these  laws.     But 
leaving  this  out  of  the  (piestion,  it  would  certainly  seem  a 
sufficient  answer  to  it,  that  in  the  same  section  the  wife  is 
authorized  to  bring  an  action  for  injury  to  her  property, 
and  that  even  at  common  law  sh(3  may  maintain  a  suit  for 
an  injury  to  her  contingent  interest  in  her  husband's  estate, 
thouo-h  an  interest  which  is  not  an  actual  one,  but  which 
the  law  considers  as  more  than  a  possibility.*'   The  fact  that 
the  wife  is   specifically  mentioned   in  the  statute,  and  the 
creditor  is  not,  makes  it  unnecessary  to  consider  whether 
legally  their  rights  are  precisely  the  same.     An  examina- 
tion of  this  case  shows,  however,  that  the  expression  just 
quoted  is  more  in  the  nature  of  a  dictum  than  a  judicial 
decision  ;   and  it  may  be  considered  as  settled  under  this 
section,  wherever  it  is  found  in  the  statutes  of  the  states 
which  have  adopted  the  civil  damage  law,  that  the  wages  of 
the  husband  are  part  of  the  wife's  means  of  support,  in  that 
they  belong  to  her  for  that  object ;  that  a  diminution  of  them 
from  the  causes  stated  will  give  her  a  right  of  action,  and 
that  having  the  right  to  rely  upon  the  support  of  her  hus- 
band,  his  previous   conduct,   except  under   extraordinary 

91  Wightninii  v.  Devere,  supra. 

M  Hayes  v.  Phelan.  4  Hun,  738. 

33  Billiard  v.  Briggs,  7  Pick.  533;  Biizlck  v.  Buzlck,  3  Cent.  L.  J.  786. 


30  INTOXICATINO   LUn'OHP. 

„„.„„8.  ,vill  nnt  ..Iter  tho  ™.o.    It  bi»  l.i.on  hoW,  l,o«.v     , 

lawfully  fm'.u»hinfr  sl.iritm,,,.,  li.|U...-»  .•...l«m».l.lo  t...  n,ju- 
r  r Suiting  tl,crrfn„n,  m.d  giv..  u  vomo-lv  to  any  ,.«•»..„ 
ZZm  »uth  injurcl  pe«„,.  n,„y  l.e  .le,,<„Hl>...t  lor  me„„» 
.,„t,  tha,  thi»  a,.,,  ,u,t  ,ive  o„o  u,,onw  ,o,n  a  ,,o™m 
l,e„, m...  cU-iH.,,.!.,.,.  in  ••uns..,"-"-  "f  intox.caUou  pro.!...-,  d 
hXorJ  fuvnishca,  ami  wlu,  wa,  not  previously  d-pon,!- 
eiit  upon  him,  uny  right  of  action.'^ 

A^'  "tion  ivill  lie,  at  the  suit  of  a  wife  or  ch.lcl,  agmnst 
the     e  ler  of  U.,uors  to   one   .vho    while  so   in  ..x.catecl, 
ml     u   con.e.,uVnce  of   svu-h  intoxication,   receiven   .nju- 
V    ulting  in  death  -     In  one  of  the  earliest  cases   c le- 
w    null    the   New   York   statute,  a  contrary  con.-lu- 
:r;::    rc:ta:      T^re    the    complaint    ,aiege.l  t.at 
nlaintitf's  hushancl  died  early  on  the  niornnig  ot  the  otl  o 
J    V     that  he  was  intoxicated   on  the  even.ng  prev  ou. 
th^  hi    death  was  eaused  by  such  intoxicatmn   producecl 
.vtho   sale  to    him   and    others   of    intox.catmg  liquor, 
S..  !bv  m  aivav  took  place  in  which  he  was  killed  by  one 
r  his  drunken  companions,  and  that  the  plau.Utf  by  ^^ 
hereof  had  sustained  damages  in  being  deprived  ot  the 
«nn"ani.,nsh^^^  of  her  husband,  and  of  the  eus  omary  su  - 
Z  and  mafnteuance  of   herself  and  her  children.     The 
court  held  that  this  did  not  show  any  cause  of  ^^^icn  ;      jit 
e  intent  of  the  statute  was  to  throw  the  responsib.hty 
br    he   injurious   a.ts   of   an  intoxicated   person   on  the 
vendor  Oliver  of  the  intoxicathig  liquor,  but  not  to  make 
;^    able  for  all  results  .vising  therefrom,  and  that  under 
r   tatute  a  ri.^ht  of  n<^lc>n  existed  against  the  donor  or 
^n^t^L'Ilone  when,  it  would  lie  against^the  intox- 
■caTed  person-    But  0..  .inrn^n.  may  he  s^d  to  oo  o.^- 
^Holllsv.  Davis,  50  N.  H.  74  .  ^^^  ,33. 

111.),  not  yet  reported;  Mason  v.  Shay,  7  Ch.  L.  >.  Ui- 
'J«  llayes  V.  Phelan.  4  Hun.  743. 


INTOXUATIXCt    LUiL'OUH. 


37 


lor  of  iiubM^t'"'!**"*^ 
n'cii  hoUl,  liowi'viT, 
inaki'sii  person  un- 
•Hponsiblo  for  inju- 
mody  to  any  person 
>pendont  for  meiins 
ipon  whom  ii  person 
toxiciition  protluct'd 
previously  depend- 

v\i'ii  or  child,  ivgainst 
hilc  so  intoxioiited, 
tion,  receives  inju- 
le  earliest  eases  de- 
a  contrary  concUi- 
iplaint  alleged  that 
lorning  of  the  5th  of 

0  evening  previous  : 
itoxication,  produced 

intoxicating  liquor, 

he  was  killed  by  one 

ho  plaintiff  by  reason 

sing  deprived  of  the 

if  the  customary  sup- 

1  her  children.  The 
cause  of  action  ;  that 
•o\v  the  responsibility 
3:ited  person  on  the 
[juor,  but  not  to  make 
efrom,  and  that  under 

against  the  donor  or 
lie  against  the  intox- 
ay  be  said  to  oo  over- 

n  V.  Brooking,  5  Ilun,  533 ; 
(It  V.  Mitchell  (Sup.  Court 
L.  N.  152. 


'1 


ruled  i>y  a  later  rase  in  the  same  court,  wlu  re  several  per- 
ilous became  intoxicated  and  engaged  in  a  drunken  atlVay, 
in  winch  one  of  their  number  was  killed,  and  an  action  was 
brou.'ht  against  the  sellers  of  the  liquors  which  caused  their 
intoxication.     Tiie  opinion  of  the  <'oui-t  in  this  case  is  an 
excellent  exposition  of  the  meaning  mm.I  purposes  of  these 
statutes.     "  It  is  true,"  says  the  ceurt,  "  the  statute  does 
not  in  express  terms  give   the  right   of  action  upon  the 
.•luise  of  death.     It   docs  not  dcHnc  the  injuries  meant  to 
1,1.  covered,  or  enumerate  them.     It  says,  generally,  '  inju- 
ries  to   person,   property  or  means  of  support,  in  conse- 
.[uence  of  the  intoxication  of  any  person.'     If  death  en- 
sues, as  the  natural  and  legitimate  result  of  the  intoxica- 
tion,  it   is  covered   by  the   language  of  the    statute.     All 
iniuries  are  covered  that  are  consequent  upon  the  intoxica- 
tii.n      If  death  were  excluded,  then  the   minor  and  tem- 
porary injuries  would  be  provided  for,  while  the  greatest 
and  most  permanent  of  all  would  be  excluded.     The  statute 
should  not  be  so  construed.     It  admits  of  the  other  con- 
struction,  and  that    is   more   consonant  with    its    benign 
purposes.     Its  nuiin  object  was  to  provide  a  remedy  for 
cases  before  remediless.     Had  it  been  contined  to  injuries 
to  person  and  property,  it  might  have  been  said,  that  only 
those  injuries  were  meant  to  be  covered,  for  which  there 
was  before  then  a  remedy  against  the  intoxicated  person. 
But  when  it  provided  for  injuries  to  means  of  support,  it 
made  actionable  a  new  class  of  injuries  without  remedy  at 
common  law,  and  unprovided  for  by  any  previous  statute. 
The  wrong  consisted  in  the  fact  that  the  sellers  of  liquors 
shut  their  eyes  to  the  condition,  in   person  or  family,  of 
those  to  whom  they  sold.     They  dealt  out  an  article  which, 
under  certain  circumstances  often  liable  to  exist  and  to  be 
known  to  the  seller,  would,  without  fail,  produce  injury,  and 
perhaps  death.    Carelessness  and  neglect,  morally  criminal, 
were  shielded  under  the  license  law.     For  this  ^yTong,  the 
statute  under  condderation  provided  a  remedy.     Notice  the 
class  of  persons  especially  endowed  with  a  right  of  action  ; 


3g  INTOXICATING    LIQUORS. 

-husband,  wife,  ohikl,  parent,  guardian.     When  iiie  stat- 
ute  provided  that  anv  of  them  might  have  a  right  of  action 
for  any  injnvy  to  his  or  her  means  of  support,  m  conse- 
nnence  of  the  intoxication  of  any  one,  is  it  reasonable  that 
the   legishxture  only  meant  to  provide  f.r  such  causes  of 
action,  as  before  then  already  existed  against  the  intoxicated 
person V     It  seems  not;  but  that  the  main  object  was  to 
provide   a   remedy  for   an  evil    entirely  without  remedy 
l^efore.     The  law  does  not  provide  how  the  injury  to  the 
means  of  support  must  be  produced  in  order  to  be  action- 
able,   when   it   is   in   consequence   ot^  intoxication.     It   is 
therefore  without  limit  in  that  respect.""' 

The  fact  of  the  marriage  being  illegal  and  void,  it  proved, 
will  prevent  the  plaintiff  from  recovering  for  mjuiy  to 
means  of  support,  but  will  not  deprive  her  ot  the  right  to 
maintain  an  action  against  the  seller  of  mtoxicating  li.puns 
to  her  alleged  husband,  if  she  shall  have  sustained  injuries 
to  her  person  or  property  by  reason  thereof.  ^ 

Sec  10.  Actncd  and  Exemplary  Damages.— The  statxites 
avthorize  the  recoverv  of  damages  co-extensive  with  the 
^^"and  likewise  exemplary  damages.  But  it  is  wel 
se  tkc  that  exemplary  damages  can  not  be  awarded  without 
^roof  of  actual  injury;  the  seller  can  not  be  pu-l-J ; 
even  if  he  has  sold  in  violation  of  the  wishes  ot  the  frieiKh 
and  family  of  the  drunkard,  unless  the  party  '>™g";g  - 
has  sustained  an  actual  and  substantial  loss.-  But  if  u  a  ■ 
nenr  that  a  wife  has  sustained  actual  damages  to  her  meani 
of  up  ort,excmplary damage 

prool-  of  aggravating  circumstances,  such  as  the  detcMidant 
?urni.hing\he  husband  with  liquor  after  notice  from  her  no 

.^G  3  "Perkfns.  30  Mich.  405;  Wightnian  v.  Devere    3  n.  o7 
;        u     »  -o  111    T«-  Rotli  V.  Eppv,  16  Am.  L.  R.  HI,  treese 
Keedy  v.  Ho.ve.  .9  ^   ;^.^-^^;  f  ^'^^^^^  bent.  L.  J.  756;  Kellenn..n  ^ 
T"''^l\    -?ni   632-  BnnUganv.Waite.  Blanke  et  al.  v.  Fulforcl.  a„ 
.      iu;;'cM  V.  Wallfi  SSa  m  U.  supreme  Court  of  Blinoi.  and  n, 
yet  reported. 


lian.  When  the  stat- 
have  a  right  of  action 
of  support,  in  conse- 
I,  is  it  reasonable  that 
le  f'.r  such  causes  of 
itrainst  the  intoxicated 
e  main  object  was  to 
ively  without  remedy 
how  the  injury  to  the 
in  order  to  be  action- 
if    intoxication.     It   is 

ral  and  void,  if  proved, 
overing  for  injury  to 
ive  her  of  the  right  to 
of  intoxicating  li(iu()rs 
have  sustained  injuries 

thereof.'^^ 

images.— The  statutes 

co-extensive  svith  the 
mages.  But  it  is  well 
not  be  awarded  without 
can  not  be  punished, 
je  Avishes  of  the  friends 
the  party  bringing  suit 
tial  loss.'^  But  if  It  ap- 
l  damages  to  her  means 
)e  awarded  even  without 

such  as  the  defendants 
ifter  notice  from  her  not 


of  Iowa,  not  yet  reported. 
\tman  v.  Devere,  33  Wis.  570; 
,  16  Am.  L.  R.  Ill ;  Freese  v. 
Cent.  L.  J.  756;  Kellerm.in  v. 
Jlanke  et  al.  v.  Fulford.  and 
me  Court  of  Illinois,  and  not 


INTOXICATING   LIQUORS. 


39 


to  do  so,  or  endeavoring  to  prevent  him  from  reforming  by 
tempting  or  inducing  him  to  drink  intoxicating  liciuors.^"* 
But  thefoct  of  the  wife  having  notiiied  the  seller  not  to  sell 
to  her  husband  should  always  enl,;uice  the  damages  ;i"'  for 
he  can  in  such  a  case  have  no  excuse  for  his  conduct,  and 
his  disrcL'ard  of  the  law  and  of  the  rights  of  others  may  weU 
merit  the  award  of  punitive  damages.     In  a  recent  case,!""^ 
in  speaking   of  exemplary  damages,  it  was  said,   where  a 
seller  of  intoxicating  crinks  had  been  notified  not  to  sell  in 
a  particular  case,  or  where  he  placed  temptations  in  the  way 
of  one  to  seduce  him  from  the  paths  of  sobriety,  or  where 
one,  who  had  been  an  habitual  drunkard,  was  endeavoring 
to  reform  and  free  himself  from  the  toils  in  which  he  had 
been  bound,  if  he  should  be  interfered  with  by  the  dram- 
seller,  to  conquer  his  resolution,  such  a  person  would  be  a  fit 
subject   for   exemplary    dauages,  and    such    damages,   so 
awarded,  would  be  in  the  nature  of  compensation  to  the 
injured  party.     And  though,  as  has  been  seen,^«'  anguish  of 
mind  and  mental  suflering  do  not  constitute  such  an  injury  as 
to  be  the  ground  for  an  action  under  these  statutes,  yet  actual 
damages  being  proved,  they  may  be  taken  into  considera- 
tion  upon  the  question  of  exemplary  damages. ^^'^     "  ^\  hat- 
ever  may  be  the  rules  of  the  common  law,"  it  is  said  m  an 
Ohio  case,  "  as  to  the  state  of  tacts  necessary  to  justify  the 
assessment  of  exemplary  damages,  it  is  clear  that  exem- 
plary damages  may  be  recovered  in  any  action  brought  under 
this'section,  in  which  the  evidence  shows  a  right  to  recover 
actual  damages."  i»*     And  in  the  same  state  an  action  was 
brought   under  the  act   of  1854   by  several    railroad  con- 
tractors who  had  in  their  employ  a  number  of  hired  hands, 
for  the  sale  to   them   by  the   defendants   of  intoxicating 
liquors,    '  whereby  they  became  drunk,  unable  themselves 

lOOHackett  v.  Sinelsley,  77  111.  109. 

101  McEvoy  V.  Humphrey,  77  111.  388. 

102  Kellermanv.  Arnold,  74  ill.  632. 

103  Ante,  Injuries  to  the  Person,  See.  7. 
iMFreese  v.  Tripp,  supra ;  Both  v.  Eppy,  supra. 
105  Schneider  v.  Hosier,  21  Ohio  St.  98. 


40  INTOXICATING   LIQUORS. 

t..  work,  prevented  the  other  hands  and  teams  from  work- 
in.  to  advantage,  and  the  progress  of  the  .lob  was  knd  led 
and  <lelaved,  and  the  contractors  were  thus  m,nred  m     -^ 
pn.pert;  and  means    of  support."     The    Supreme  Court 
sustained  a  verdict  awarding  actual  and  exwnidary  damage, 
ac^ainst  the  defendant s.^'"^     In  Wisconsin,  m  a  case  where  a 
hushand,  in  consequence  of  becoming  intox.cated  by  hcjuo 
sold  to  him  by  the  defendant,  received  certain  .^n^^ 
was  held  that  the  wife  was  entitled  to  recover :     .Compen- 
sation for  watching,  nursing  and  taking  care  ot  ^^  ;^^^ 
his  sickness;  2.  Damages  f<n-  injury  to  her  own  heal  h  m 
consequence;  3.  The  expenses  of  employing  medical   at- 
tendance   and   assistance;  4.  The  cost  ot  hmng    abo    to 
attend  to  his  business.-     And  in  lUmo.s    where  the  In.- 
band  of  the  plaintiff  had  become  a  conhrmed  drunkard,  aban- 
doning an  occupation  in  which  he  was  earning  hve  dollars  a 
dav,  Tnd  had  squandered  a  valuable  property,  a  verdict  ot 
$10,000  actual,  and  $2,000  exemplary  damages  was  consid- 
ered not  excessive.-     In  Michigan,  the  statute  has  recemu 
a  .somewhat  stricter  construction.     In  a  recent  case  in  that 
state,^- the  court  say  :  "There  can  be  no  exemplary  dam- 
ages without  actual  injury.     It  is  to  be  observed  that   inju- 
des   received   from  the  intoxication  of  stmngers  are  em- 
braced in  the   same    clause  with  those  suffered  trom   the 
intoxication  of  .vards,  relatives  or  husbands  and  wives,  and 
that  persons  who  have  no  blood  or  marital  connection  with 
the  intoxicated  person    are  also  grouped  together.     It  i, 
plain,  therefore,  that  the   measure  of  damages  can  no    be 
She  same  in  all  cases,  and  that  there  must  be  some  ot  them 
M-here   exemplary   damages  would   be   al,surd.     There   is 
nothing  in  these   cases  to   exempt  them   from   the   rule 
applieS  to   any   other  eases   .)f   actionable   -^-"g'^-  J^  ^^ 
actual  damages  should  be  as  nearly  c<.mmensurate  ^Mth  the 

106  Dmoy  V.  Blinn.  11  Ohio  St.  332. 
;o7  ^Vightman  v.  Pevcre.  33  Wis.  .")70. 
w.Tewi'tt  V.  Vfanshura.  ^  Ch.  L.  X.  32^. 
i'«  Ganssly  v.  Terkius.  30  Mloli.  VM. 


■te^ 


INTOXICATING    LIQUORS. 


41 


teams  from  wovk- 
ic  job  wtis  hiiKlered 
bus  injurea  in  their 
h(?   Suin-enie  Court 
exemplary  damageri 
I,  in  a  case  where  a 
ntoxicated  by  lujuor 
[  certain  injuries,  it 
■ecover :  1.  Compeu- 
y  care  of  him  during 
o  her  own  health  in 
ph-)ving  medical    at- 
t  of  hiring  labor  to 
lois,  where  the  hus- 
•med  drunkard,  aban- 
earning  tive  dollars  a 
property,  a  verdict  of 

damages  was  consid- 
e  statute  has  received 

a  recent  case  in  that 
J  no  exemplary  dam- 
e  observed  that   inju- 
of  strangers  are  t?m- 
)se  sutiered  from   the 
sbands  and  wives,  and 
larital  connection  with 
uped  together.     It  is 
f  damages  can  not  be 
must  be  some  of  them 
1)(?   absurd.      There   is 
them   from   the    rules 
ionable    wrongs.     The 
commensurate  with  the 


actual  injury  as  the  nature  of  the  case  will  permit ;  and 
exemplary  damages  should  be  given  in  those  cases  alone 
where  the  plaintitf  has  some  personal  right  to  complain  of  a 
wanton  and  willful  wrong  which  the  Anong-doer,  when  he 
conmiitted   it,   must    be   regarded    as    having  committed 
against  the  plaintiti'  himself,  in  spite  of  the  injury  he  must 
have  known  she  was  likely  to  sutler  by  it.     The  foundation 
of  exemplary  damages  rests  on  the  wrong  done  Avillfully  to 
the  complaining  party,  and  not  on  wrong  done  without  ref- 
erence to  the  party."     And,  in  another  place,  they  say: 
♦'  The  plaintiff's  testimony  indicated  that  she  had  7iot  been 
deprived  of  the  sober  society  of  her  husband  ;  defendants 
were  liable  for  the  mischief  which  tbey  may  have  produced, 
by  preventing  his  improvement  or  maldng  him  worse  ;  but 
they  are  not  responsible  for  damages  as  they  would  have 
been,  if  they  had  reduced  him  from  sobriety  to  sottishness. 
The  moral  quality  of  contributing  to  the  degradation  of  one 
already  debased  is  no  l)etter  than  if  he  were  sober.     But 
the  remedy  is  given   for  the  injury  suffered  ])y  the  wife ; 
and  she  loses  much  less  in  property  and  comfort  when  her 
condition  is  not  seriously  changed,  than  when  there  is  con- 
siderable change."    And,  in  New  York,  it  is  held  that  ex- 
emplary damages    should  he  given  only  where  there  are 
circumstances  of  al)use  or  aggravation  proved  in  the  case  on 
the  part  of  the  vendor  of  liquor."" 

The  defendant  may  prove  that  he  had  forbidden  his  serv- 
ants to  supply  the  intoxicated  person  with  liquor,  and 
that  they  willfully  disobeved  him  without  his  connivance,"^ 
or  that  he  endeavored  to  prevent  his  obtaining  the  liquor, 
and  had  frequently  refused  him,  or  that  he  had  procured 
it  by  artifices,"^  not  in  bar  of  the  action,  Init  in  mitigation 
of  exemplary  damages.  For  a  like  purpose  it  has  been 
held  in  New  York,  that  he  may  prove  that  he  was,  on  the 
occasion  complained  of,  lawfully  selling  under  the  author- 
no  Franklin  V.  Sclicrmerhom,  8  Hun.  112. 
ui  Freese  v.  Tripp,  supra ;  Kreiter  v.  Xicliols.  28  Mich.  499. 
U'^Bates  v.  Davis,  7G  111.  223. 


42 


INTOXICATrXO    LTQl'ORS. 


•„,  ,,•  ,  ,i,.nsc.  LM-ant..!   by  the  stat.  or  t<.vn."      But  such 
%,n..  is   nc.ta.lmissil,U.  in  Illinois.-     In  Indmna    n.  an 
c'.rh-  case,  it  was  held  that  wh.vc  th.  saU>  was  ^ogal,  thus 
,,„;i,vin-   thi-   soUer   liable  t(.  a    mniinal   prosoout.on,  he 
,.uia  not  bepunishod  with  vindictive  damng.-s  n.  a  cn:.lac- 
tirni"^     But   it  has  been  since  held  that   the  act   ot  1873 
has  'expres.lv  abrogated  this  rule.™     In   Illinois,  on  proo 
of    iUclal  sales,  exen.plary  dan,ages  n,ay  be  re-c^ered^ 
The  statutes  provi.ling  that  any  person  who  shall  be  m 
nn-ed  in  person,  property  or  nu-ans  of  support    m  conse- 
Znce  o    the  intoxication,  habitual   or  otherwise,   ot  any 
^1,  shall  have  a  right  of  action,  it  would  seen.  t.>  re,jure 
in  extraordinary  interpretation  to   hold  that  the  deteud  u^^ 
i>.  not  responsible  for  all  conseciuences  ansnig  trom    he  s.  le 
.,f  intoxicating  li.,uors,  but  only  for  consequem^s  which  he 
„  ,v  be  presmned  to  have  foreseen  as  likely  to  be  the  result 
f  his  sis.     Yet,   in  a  recent  Indiana  case,- where  a  hu. 
l„,a  Leeanie  grossly  intoxicated  from  liquor  sold  to  hnn  by 
Uotcndant,  ainl  while  being  hauled  home  jn  J-^^n  - 
this    state,   received   injuries  from    a  barrel  <>f  f  \/'^""f 
,n  him   trom  which  injuries  he  died,  it  was  held    hat  h.s 
^idow  had  no  right  of  action  under  the  st..tute  the  <^h  o 
the  husband  being  the  immediate,  and  the  .ntoxication  ot 
the  husband  onlv  the  remote  cause  of  the  injury  to  her. 
In  support  of  this  view  the  court  say:  "  The  defendants, 
:.ai!ngtlie  intoxicati.m  ^f  the  deceased,  could  no^^ 
anticiiMited   that,  on  his  way  home,   he  would   be   f  tally 
i^od   bv   the   salt  barrel.      This   was  an   extnu.rdniary 
and  fortuitous  event,  not  naturally  resulting  trom  the  mtox 
ieation.     Suppose,  by  way  of  illustration,  that  a  person,  by 


n3  8  AH).  L.  .T.  337. 

iHRoth  V.  Eppj'.  stipra- 
iisStruble  V.  NotVwift.  11  liul.G."). 

no  Si'hafer  v.  Smith.  4  Cent.  I-.  J.  271. 

117  Ma.on  V.  Shay,  7  C)i.  L.  N.  152.  Worcester,  4 

iisKraeh  v.nenman.4  Cent.  L.  J.  23^,  cum?  .  la  35  N.  Y. 

Grav.  395 ;  Crain  v.  Petrie,  C  Hill,  522 ;  Ryan  v.  > .  \ .  C  R.  R-.  3o  > .  Y . 

210  •  Fairbanks  v.  Kerr,  70  Tenn.  8G. 


INTOXICATINO    LIQlTC  RS. 


43 


town."''     But  such 
In  Indiana,  in  an 
iili>  was  iU('jj;al,  thus 
nal   prosecution,  he 
ini:ii:cs  in  a  civil  ac- 
lat   the  act   of  1873 
In   Illinois,  on  proof 
nay  he  recovered."' 
son  who  sliall  1)C  in- 
i  siipport,   in  conse- 
,r  otherwise,   of  any 
,'ould  seem  to  require 
d  that  the  defendant 
arising  from  the  sale 
inse(iucnces  which  he 
likely  to  be  the  result 
I  case,"*  where  a  hus- 
liquor  sold  to  him  by 
ome  in  his  wagon  in 
barrel  of  salt  fulling 
:I,  it  was  held  that  his 
le  statute,  the  death  of 
id  the  intoxication  of 
of  the  injury  to  her. 
iv  :  "  The  defendants, 
•eased,  could  not  have 

he  would  be  fatally 
was  an  extraordinary 
sidting  from  the  intox- 
tion,  that  a  person,  by 


ting  Marble  v.  Worcester,  4 
L  V.  >'.  Y.  C.  R.  K..  35  N.  Y. 


reason  of  intoxication,  lies  doAvn  under  a  tree,  and  a  storm 
blows  a  liml>  down  upon  him  and  kills  him,  or  that  ligiit- 
ninir  strikes  the  tree  and  kills  him  ;  could  it  be   said,  in  a 
U'gal  sense,  that  his  death  was  caused  by  intoxication?     In 
the  chain  of  causation,  the  intoxication  may  have  been  the 
remote  cause  of  his  death,  because,  if  he  had  not  been  in- 
toxicated, he  would  not  have  placed  himself  in  that  i)osition, 
and  therefore  would  not  have  been  struck  by  the  limb  or 
lightning.    In  the  case  supposed  it  maybe  assumed  as  clear, 
that  the  parties  causing  the  intoxication  would  not  be  liable 
under  the  statute  to  the  widow,  as  for  an  injury  to  her 
caused  l)y  the  intoxication  of  the  deceased.     Yet  there  is 
no  substantial  difference  between  the  case  supposed  and  the 
real  case  here."     It  is  likely  that,  on  the  general  principles 
applicable  to   such  a  case,  the   conclusion  reached  by  this 
com-t  is  correct ;  for,  to  make  the  defendant  liable,  it  is  not 
enough  to  say,  that  as  the  injury  would  not  have  occurred 
hut  for  his  net  ni  selling  the  li(iuor,  and  thereby  intoxicating 
the  person  who  was  killed,  therefore  the  defendant  is  re- 
sponsi})le  ;  for  he  can  only  be  held  liable  where  his  act,  in 
the  absence  of  any  independent  intervening  agency,  would 
be  likely  to  be  followx'd  by  an  injury  to  another.     But  a 
fair   construction   of    the   statute,   and   the   intent   of    its 
framei-s,  woidd  seem  to  justify  the  adoption  of  a  different 
rule  in  this  peculiar   class  of  cases.     Such  has  been  the 
tendency  of  the  courts  generally."^ 

The  Supreme  Court  of  Indiana,  in  a  still  more  recent 
case,i™  has  applied  the  same  rule  to  the  case  of  one  who, 
while  intoxicated,  was  run  over  and  killed  by  a  train  of 
cars.  The  death  of  the  person  (the  husband  of  the  plaint- 
iff in  the  case  referred  to),  caused  by  the  train  of  cars, 
the  court  say,  "  is  an  effect  which  is  not  naturally,  necessa- 
rily, or  even  probably  connected  with  the  fact  of  unlawfully 
selling    intoxicating    liquors    to    him    by    the   defendant, 

"9 See  Both  v.  Eppy,  16  Am.  L.  E.  Ill;  Schmidt  v.  MitcheU.  Supreme 
Conn  of  Illinois,  not  yet  reported;  Emory  v.  Addis,  6  Ch.  L.  N.  33G. 
J2«Callier  v.  Early,  4  Cent,  L.  J.  40G;  Monthly  Jurist,  May,  1877. 


^^  INTOXICATING    LIQUOUS. 

wherebv  he  beoaino  drunk  :  un.l  when  the  death  oouhl  take 
.0    milv   upon  the  e.inei.lenee    of  his   .steppn.g  on   the 
P    k  and  the  train  passing  at  the  san.e  tnne.   the  eon.^ 
"L  becomes  more   remote  and  n.ore  diseonneeted  with 
r  eause  alleged.     The   death  need  not  take  place  nnne- 
iatelv  and  diiietly  upon  the  eause,  but  it  must  be  erteet  d 
,v  a"ehain  of  natural   erteots   and    causes,  unchanged   bv 
•„::  action  ;  ov  the  party  who  committed  the    rst  aet^ wd 
not  be  respousible.     In  this  case,  the  running  ot  tlie  tiam 
c     s  was  the  human  action,  which  changed  the  course  o 
1  ^1  enacts  and  causes  connected  with  the  act  alleged 

::^      the  defendant.     *     *     *     '^'^^  »^^f  "^if  ^  '"^'l^ 
^'.s  killed  by  the  train  of  cars,   and  not  by  the  ac    ot  the 
.;^,      ^  i/«nlawfullv  selling  him  intoxicating  buuor 
t       ■  r.'  le  upon   the  Ohio  liquor  law,  published  m  the 
Lava.y  .urist  ior  May,  1877,  and  which  ^ ^^l^^ 
<..v  notice  since  this  review  went   to  press,   the J^^^on 
of  the  '    liav.^      'Urt  in  these  two  cases  ,s  very  ^^^h  a  ti- 
cLd      "It    se.u.«    apparent,"   says   the    writer,  "  tlmt   a 
.doon  keeper,  in  selling  intoxicating  liquor,  must  eontem- 
ptthat  the  person  buying  the  same  may,  and  even  prob- 
ndv  will,  if  he  becomes  intoxicated,  be  hurt  by  some  one  oi 
1  'man;  instruments  of  danger  found  in  cities  ami    o.ni 
where  liquors  are  sold.     Stripped  of  his  reason  and   he  u.e 
o      is  limbs,  what  is  more  natural  or  probable  than  that  the 
nlr^  aser  w  11  meet  injurv  or  deathV     Just  how  he  may  be 
^":X^  what  train,  ^r  in  what  place-the  saloon  keeper 
^^^Ja  not  tell;  but  that  injury  will  probably  beta 
h  m,  the  seller  must  contemplate.     So  if  one  -Us  hquo   to 
another  by  which  he  becomes   intoxicated,  and  the  sel  ei 
Tn  plaeel  him  in  a  wagon,  with  another  drunken  man  tor 
.  d  iver,  is  it  not  probable  that  an  accident  will   happen  to 
themv     A  wrong-doer  is  lial,le  for  the   natural,  iiecess.vr> 
J^  even  probable  consequences  of  his  acts.     The  inten  ion 
of  the  lejslature  in  passing  this  law  seems  to  have  been 
pro.Hde  for  cases  like  these,  and  give  a  remedy  where  nom 
ex^ed.     Prior   to   the   adoption  of  this   law,    a  wite  wa. 


INTOXKATINU    L1QUOR8. 


45 


110  death  roultl  take 
lis  st<'pi>injr  «>n   the 
iii>  tiln«^  the  <'()nsi'- 
re  (liscoiuKK'tcd  with 
lot  tako  plat-f  iimuo- 
t  it  must  1)0  effooted 
uses,  unchaufjed   by 
tted  the  tirst  act  will 
[•unniuir  of  the  train 
hanged  the  course  of 
with  the  act   alleged 

0  plaintiff's  husband 
not  by  the  act  of  the 
intoxicating  liquor." 
law,  published  in  the 
hich  has  come  under 

1  press,   the   decision 
less  is  very  ably  criti- 

the    writer,  "that   a 
liquor,  must   contem- 
e  may,  and  even  prob- 
le  hurt  by  some  one  of 
id  in  cities  and  towns 
his  reason  and  the  use 
probable  than  that  the 
Just  how  he  may  be 
ac(. — the  saloon  keeper 
i-y  will  probably  befall 
jo  if  one  sells  liquor  to 
xicated,  and  the  seller 
other  drunken  man  for 
iccident  will   happen  to 
the   natural,  necessary 
lis  acts.     The  intention 
;  seems  to  have  been  to 
e  a  remedy  where  none 
f  this   law,    a  wife  was 


without  a  remedy,  if  her  husband  became  intoxicated  and 
was  killed  by  the  i-ars.  On  account  of  the  deceased  being 
drunk,  she  could  not  recover  in  an  action  against  the  rail- 
road company.  It  was  clearly  the  intention  of  the  legisla- 
ture to  apply  the  law  to  cases  like  these  ;  and  to  do  so,  re- 
(|uires  no  extension  of  the  act  by  judicial  constructicm." 
In  dismissing  this  phase  of  the  subject,  it  may  be  sutficient 
to  say,  that  in  no  other  state  where  these  statutes  exist  has 
such  a  narrow  construction  been  placed  upon  their  provi- 
sions, (u-  such  an  apparent  attempt  been  made  to  defeat 
the  wholesome  remedy  which  their  framers  have  endeavored 

to  give. 

Sec.  11.  Pleading— Limitation. — The  action  under  these 
statutes  is  contined  to  persons  who  are  injured  in  person, 
property  or  means  of  supi)ort ;  no  right  of  action  is  given  on 
the  mere  ground  of  relationship.^-'  Though  it  was  probably 
the  intention  of  the  legislature  to  give  a  single  right  of  ac- 
tion and  single  damages  to  but  one  person  for  a  single 
iiijury,  it  would  seem  that  such  right  may  arise  under  these 
statutes  to  a  husVuind  or  wife  and  each  of  their  children,  be 
they  ever  so  many,  as  well  as  to  all  other  persons  men- 
tioned in  the  section. ^-- 

In  a  very  recent  Illinois  case  the  declaration  averred  that 
the  defendant  sold  and  gave  to  one  E  intoxicating  liquors, 
••  and  thereby  caused  him  to  l)ecome,  and  he  was  during  that 
time  before  named,  habitually  intoxicated."  It  was  con- 
tended that  this  was  an  averment  that  the  intoxication  was 
caused  in  whole  by  the  defendant ;  that  such  must  be  the 
proof;  and  that  it  Avas  not  sufficient,  to  sustain  the  count,  to 
show  that  the  intoxication  was  caused  in  part  by  the  defend- 
ant. But  the  court  overruled  the  olyection.  "The  stat- 
ute," they  say,  "gives  the  right  of  action  where  the 
defendant  shall  have  caused  the  intoxication  in  whole  or  in 
part.  Contracts  are  entire,  and  must  be  proved  substan- 
tiallv  as   alleged ;  but  torts  are  divisible,  and  in  them  the 

J-'i  Gan!^^'ly  v.  Perkins,  30  Mich.  495. 

1"  Fianlilin  v.  Sclienneihoin.  S  Ilun,  112. 


4g  INTOXICATING   LIQUORS. 

,,,,,„•,«■  may  prove  a  part  of  "»  «>3  r^Brrl!- 
thprc  be  enough  proved  to  support  the  tort.        Uut  a  lo 

h  ,,t  on  the  bond  under  the  Indiana  statute  wh.eh  averre 
tha  heintoxieationwa,  caused  in  part  by  Uquors  so  d  bv 
the  de  Jndanfs  prinoipal,  and  that  while  so  intox,cated  and 
bv  ea  on  of  sueh  intoxieation,  the  purchaser  eansed  da,n- 
Z:L  been  held  b.d.»  Under  the  New  HarnpsU.r^sUut  , 
a  declaration  in  trespass  alleging  an  assault  and  battciyas 
ha"on  commitled  directly  by  the  defeudant,  .s  snffi- 

3rrsr:tt^::rrrt:;^:;s 

'trtinctly  :ver  «  the  injury  eompWued  of,  and  the 
rLes    ought  to  be  recovered,  resulted  in  consequence  of 
M  of  intoxicating  liquors ;  and  therefore  an  avermeut 
thaf  w  Jls   A  was  intoxicated  by  reason  of  liquor  sold  h,m 
bv  C  he  inflicted  a  mortal  wound  on  the  husband  ot    he 
linUff  eausiug  his  death,  does  not  sufficiently  show  that 
?ie  wlul  was'  inflieted  by  reason  of  the  intox,eat,ou  o 
A  .»    Z  a  complaint  by  a  wife,  alleging  that  her  hn^-mnl 
be'came  intoxicated  by  liquor  purchased  from  the  detendaut 
':d "ereby  neglected  his  work,  ^"."-j-^-^t^J-i 
damaffed  the  plaintiff  in  her  means  of  support,  is  gooa. 
hlltns  under  these  statutes,  the  intoxicated  person  ,s 

nh?"ofC„"rnal  injuries  is  the  tortious 
;     in!tThc  person  injured,  although  the  right  of  action 

frt^SrrX'thXorwhich  caused  the 

i«  Am  T    Reff  111 ;  Hill  V.  Blanford,  45  ni.  8. 
isRoth  V.  Eppy,  16  Am.  L.  Keg.  Ill , 

mschaferv.Cox,49Ind.460 

mBodgev.  Hughes,  53  N.  H.  615. 

i26Schaferv.Cox,49Ind.460. 

mBarnabyv,Wood,60Ind.405. 

i«  English  V.  Beard,  51  Ind.  489. 


INTOXICATINO    LIQUORS. 


47 


ore  and  recover,  if 
rt.'*'     But  ii  foin- 
ute,  which  averred 
by  liquors  sold  by 
so  intoxicated,  and 
ihaser  caused  dam- 
Hampshire  statute, 
ault  and  battery  as 
defendant,  is  suffi- 
rer  damages  for  an 
1  while  in  a  state  of 
y  furnished  him  by 
that  the  complaint 
iiplained  of,  and  the 
id  in  consequence  of 
refore  an  averment 
1  of  liquor  sold  him 
the  husband  of  the 
ufficiently  show  that 
'  the  intoxication  of 
mg  that  her  husband 
from  the  defendant, 
iered  his  money,  and 
f  support,  is  good.^'-" 
intoxicated  person  is 

njuries  is  the  tortious 
h  the  right  of  action 
upon  the  wife  or  per- 
e  of  limitations  runs 
nor  which  caused  the 

f.  Blanford,  45  HI.  8. 


intoxication,  and  not  from  the  date  of  the  injury  .••'•'  But  the 
right  of  action  so  far  vests  at  the  time  of  the  injury,  that  the 
statute  does  not  divest  it  upon  the  death  of  the  husl)and, 
nor  does  it  abate  upon  conmiou-law  principles.  Tlie  jjarty 
doing  the  injury  has  no  interest  in  it  and  no  control  over  it. 
The  right  of  action  vests  in  the  injured  person  to  l)e  prose- 
cuted in  his  or  her  own  name,  and  for  his  or  her  own  use. 
The  wife  does  not  lose  her  identity  by  the  death  of  her  Inis- 
band.  The  relation  of  wife,  though  essential  by  the  terms 
of  the  statute  to  the  inception  of  the  right  of  action,  is  not 
necessary  in  the  prosecution  of  the  remedy,  and  after  the 
death  of  the  hus))and  she  may  bring  her  action  for  the 
cause  of  his  death  under  the  statute,  though  "widow" 
l)e  not  exi)ressly  named  in  it.*™  The  statute  does  not 
re(iuire  that  she  be  a  wife  at  the  time  of  bringing  her  action, 
but  only  at  the  date  of  the  wTongful  act.^''*  So  an  em- 
ployer may  sue  for  injuries  done  to  liim  by  the  intoxication 
of  ins  servant,  after  the  relation  of  master  and  servant  has 
terminated. 

Sec.  12.  Evidence— What  Acts  will   bar  a   Recovery. 

^The  uijuries  sought  to  be  established  in  these  cases  not 

being  recognized  or  redressed  under  the  rules  of  the  com- 
mon law,  the  evidence  necessary  or  competent  to  prove 
them  and  their  extent  is  not  coniined  within  the  bounds  of 
that  admissible  to  establish  a  common-law  toit.^''^  Under 
the  rule,  however,  adopted  by  the  Ohio  courts  in  this  class 
of  cases,  the  plaintitf  is  required  to  prove  his  case  beyond 
a  reasonable  doubt. ^^  What  constitutes  intoxication  is  a 
question  of  fact  to  be  determined  by  the  jury  upon  the 
whole  evidence  in  the  light  of  their  own  observation.^ 

129  Emmett  V.  Grill,  39  Iowa,  690. 
13"  Haekett  v.  Smelsley,  77  111.  109. 

131  Schneider  v.  Hosier,  21  Ohio  St.  116 ;  Jackson  v.  Brookins,  5  Hun,  530. 

132  Dunlavey  V.Watson,  s«pra;  Guenerech  v.  Smith,  34  la.  348;  Knif- 
fen  V.  McConnell,  30  N.  Y.  285. 

133 Mason  v.  Shay,  7  Ch.  L.  N.  152. 

i«Roth  V.  Eppy,  16  Am.  Law  Keg.  111. 

As  to  the  meaning  of  the  term  intoxicating  liquors,  as  used  in  these 


lu  IXTOXICATINO   LIQUORS. 

The  injury  to  the  means  of  support  of  u  man-ied  woman, 

cnus^  by  L  sale  of  intoxicating  li.iuors  to  her  hnsba.ul, 

W^d^he  acquires  habits  of  intemperance  and  .Ulcn^ess, 

L  vary  greatly,  according  to  the  age   c.nduicM.  and  c  - 

c  mstances  of  herself  and  husband.     Evidence  therefore  n> 

^c^es  tluvt  thehusbandw..  asober,incU.tn<.^:-^^ 

providing  for  and  supporting  his  tamily  prior  to  the  tim. 

Xn  the  defendant  caused   his  intoxication  by  selling  to 

in  intoxicating  lienors,  and  after  such  sales  and  m  coiis^ 

.uence  thereof  he  became  less  industrious  than  ^J^^^ 

before  ;  that  such  sales  caused  him  to  neglect  h  s  bu     icss 

or  work,  or  squander  his  means  to  any  extent  s(,  a    to 

LZe  the  uLis  of  support  of  his  wife,  is  admissible; 

::Hlie  jury  may  be  instructed  to  tak«  these  circ^ns^i.^ 

into  consideration   on  the  .piestion  of  damages.        But  it 

is  improper  for  the  court  to  charge  as  a  matter  ot  law  tha 

4e  selling  of  intoxicating  liquors  to  a  person  tar  gone  i 

vili ts    ot    intoxication,    and    who   hud    become    diseased 

l:;:!S;  and  mentany ,  would  be  more  aggravating  than  s.lhng 

to  one  not  so  badly  ad.licted  to  intemperance,  oi  v.ho  had 

statute,  see  Wortey  v.  Spui^eon.  ^^^J^^TTi:^^^ 

legislature  to  declare  it  ->' ^^ '^^:'^'tiLoe  that  lager 
that  "  fermented  "  was  not  •"'PiV'  ""  >„  '^complaint  for  selling  •'  in- 
beer  i«  not  intoxicating  is  >"^dnm.  ble  ^n  a  compljU  ^^^^^  ^^^^^ 

toxieating  liquors."  Com.  v.  Bubser,  ^^/^'^^ '  f^j^^j^^^^^^  i,  „ot  "spir- 
als being  produced  by  fermentation  an  I  not  bj  d  ""at^^^^^^^  .  ^^^^^,^ 
Uuous  liquor.''  ^eople^^Cnley,  20^^^^^^^^^  ^^   ^^^^    ,,,. 

418;  Nevn  v.  Ladue  3  IJ«»i«^  ^f^'^^^^^^  v.  Wittmar,  12  Mo.  407,  ale. 
Com.  V.  Jordan,  18  Pick.  J;»;  J;"\^"  .  j^        ^,,,^  ,vine,    are  held  to  be 

Ind.  106.  ^^^      ,^ 

i:»Dunlavey  V.  Watson,  .^8  la.  400. 


INTOXK'ATINO    MQLOKS. 


4!) 


u  man'icd  wonmn, 
•8  to  her  husbaiul, 
•ance  tuul  idlcneHS, 
eoiuUtion  atul  cir- 
idciice  thoretbro  in 
',  industrious  man, 
f  prior  to  tho  time 
ation  by  selling  t() 
sales  and  in  coniso- 
18  than  he  had  b^ei^ 
leglect  his  business 
ly  extent  so  as  to 
wife,  is  admissible  ; 
these  circuuistanees 
damages."*  But  it 
L  matter  of  law  that 
person  far  gone  iu 
d  become  diseased 
ravating  than  selling 
lerance,  or  who  had 

S5;  Jewett  v.  Wanshura, 
,  State  V.  Stapp,  -29  Iowa, 
the  fact  that  spirituous 
,d.  450 ;  Com.  v.  Peckham, 
eer  is  intoxicating.    Klare 
[nd.  312,  it  was  held  that, 
he  court  did  not  judicially 
ued  by  the  defendant  that 
not  in  the  power  of  the 
5  Blackf.  118,  it  was  held, 
tor.    Evidence  that  lager 
complaint  for  selling  •'  in- 
,83.    It  has  been  held  that 
!y  distillation,  is  not  "spir- 
;;  State  v.  Moore,  5  Blackf. 
V.  Markoe,  17   Pick.  405; 
.  Wittmar,  12  Mo.  407,  ale, 
md  wine,   are  held  to  be 
e  also  Houser  v.  State,  18 


more  viu'or  <»f  I'odv  or  mind.     All  su.-h  .|U(".stions  are  for 
the  jury"^"*     Kvidcnce  is  admissible  to  prove  the  fact  of  the 
inlMxication  of  the  party  who  caused  the  injury  during  a 
icrtain  period,  before  it  has  been  shown  that  such  intoxica- 
tion was  caused  by  the  defendant.'"     So  it  is   proper  to 
prove  the  practice  of  the  drunkard  in  visiting  other  saloons, 
in  order  to   show  what   proportion  of  the  money  he  hail 
spent  for  li(juors  had  been  paid  to  defendant.''*     Tlie  ina- 
bility of  the  husband  to  obtain  employment  on  account  of 
his  habits  of  intoxication  may  be  sho.  i,  but  not  his  desire 
for   intoxicating    li(iuors.™      Evidence    is    inadmissible   to 
prove  sales  of  liuuor  made  prior  to  the  passaije  of  the  acts 
ilivin"^  the  remedy ,'<«  or  subsetiuent  to  tho  commencement 
of  the  action  ;'"  and  evidence  that  the  wife,  since  the  suit 
was  brought,  had  purchased  liciuors  and  drunk  them  with 
her  husband,  is  admissible  only  where  damages  are  sought 
by  her  for  injury  to  her  feelings  and  disgrace  caused  by  her 
husband's  intoxication.'" 

Under  that  section  of  the  statutes,  allowing  the  recovery  of 
compensation  for  taking  care  of  a  person  while  intoxicated, 
it  is  held  that,  if  the  person  so  intoxicated  had  recovered 
from  the  elTeet  of  tho  liquor  sold  him  by  the  defendant,  and 
was  sober  at  the  time  of  receiving  the  injury,  or  if  he  had 
become  sober  and  afterwards  got  intoxicated  upon  liciuors 
sold  by  others,  the  first  seller  would  not  be  held  lial)lc. 
Therefore,  in  such  a  case,  any  evidence  is  admissible  which 
may  tend  to  show  that  the  injured  party  had  become  sol)cr 
before  the  accident,  or  had  injured  himself  while  under  the 
<^ffects  of  an  intoxication  subsequent  to  that  caused  by  the 
defendant.     So,  also,  evidence  is  proper  which  may  show 
the  leu'Tth  of  time  required  to  recover  from  an  intoxica- 

i3«  Ludwig  V.  Sager,  Supreme  Court  of  Illinois,  January  Term,  1877. 

137  Woolheather  v.  Risley,  38  la.  480. 

138  Hemmens  v.  Bentley,  32  Mich.  89. 

139  Roth  V.  Eppy,  supm. 

i«  Dubois  V.  Miller,  5  Hun,  332. 

wi  Woolheather  v.  Risley.  mpm. 

i«  Kearney  v.  Fitzgerald,  sui>m. 

4 


fiO 


ixToxKATiNO  Ligi'ons. 


<•„.„..  ,,„!  the  (l.livory  ..f  tin-  Vu^uov  to  the  porson  .s  suff.- 
cioMt  <.vi.U.nce  of  u  sulc'"  The  cvi.U.ncc.  must  be  conhncl 
to  the  cause  state.l  in  the  .le.-hirafu.n  or  iK-tltion  :  un.l  whore 
the  injury  uUejre.l  is  to  n.eans  o(  support,  it  .s  error  U> 
luhnit"  proof  of  injury  to  property.'^'  ,      .     i  „ 

Una..r  those  arts  whi.h  -ive  a  renuMly  in  ...se  o.ily  ot  sales 
or  .rifts  made  in  viohiti..n  of  theirpn.visions,  the  proof  m  re- 
nuiml  to  he  more  direct,  such  an  action  hcin^'  n.  its  nature 
Lsi  .-riu.inal.  Where  the  action  is  brought  tor  damage, 
caused  hv  the  sale  of  lic,uors  to  an  habitual  ^»>unkard  .  nu.st 
Z  shown  that  the  dctV-ndant  knew  hin,  to  be  such,-  aUho.^ 
it   m.e.l  n<.t  be  proved  that  he  was  intoxicated  a    the    nn. 

uj  lienor  was  Wished  >.^  ^^"* '^"''^^'^t  i:;.!;;' - 

perate  habits  .>f  the  person  nn.y  be  proved  by  -1  "^      '    ; 
And  in  the  case  of  a  sale  to  a  minor,  the  burden  ot  pioot  .s 
,t  ;     - Icfendant   to  slu.w  that  he  believe<l  him  to  be  ot 
U    .,  ..>    And  it  has  been  held  that  a  sale  to  a  nunor,  wl  o 
kHfT.r  the  liquor  in  behalf  of  one  to  whon.  d  m.ghtlaw tully 
"^  .d   ,  s  in    ontravention  of  th<.  4atute.-     The  turu.shn.g 
f  Cors  to  a  minor,  as  prohibited  in  the  statute,  .s  com- 
L:  although  the  liquor  may  have  been  V^r^^^^^ 
l,ther,  an<l  supplied  by  the  seller  "M'— ^  "^^  ^ ^/^  ^ 
,hase  ^'^^     And  tho  statement  of  a  physu-.a-.  who  was  m  the 
haL/of  getting  intoxicated,  made  at  the  tune  o    Ins  pur- 
IL  of  liqum-,  that  he  wanted  it  for  a  pai. cut,  and  foi 
mXal  purposed  did  not,  it  has  been  held,  in  the  f  >-"- 
Jproof  to   the  contrary,  raise  the  presumption  that  the 
sales  were  made  to  the  patient.''^ 

1*1  Braiinan  V.  Ailanis,  siywi. 
i«  State  V.  Ftihfleia.  37  Mo.  517. 
145  lliu-kett  V.  Snielslcy,  77  111.  109. 
i«Markevt  V.  Iloffner,  4  Am.  L.Roc.lll. 

;:s:::"j,;ni'.»";'";' «"-w,r. «.  «>«.,,»  c..„„.  .::■.  s.... 

'•,!:k1«u'v.  *;.,.,  «  ...a.  77;  K,»e„,.„  v.  S...e,  »■  *».  -«'■  v 

State,  41  Iiiil.  102. 
150 state  V.  Fairfield,  ;»7  Me.  ol7. 

151  State  V.  Munson,  2.'i  Ohio  St.  381. 
i62Boydv.  Watt,  .siij)m. 


^^ 


INTOXICATINCl    I-IQUOnS. 


:>! 


he  porson  is  suffi- 

lUUHt  be  ooiitiiH'd 

•tition  ;  un<l  whore 

I. it,  it   is   error  i(* 

n  ciiHO  only  of  sales 
1118,  the  proof  i><  rc- 
l»ciii<j:  in  its  iiiiture 
)u<rht  for  (hmiti^'cs 
ildrunlviinl,  it  must 
Ik'  such,''"aUhoujj:h 
xicated  at  the  time 
edirc  of  the  int«'in- 
(.(lity  reputation."" 
.  burden  of  proof  irt 
lii'ved  him  to  be  of 
ale  to  a  minor,  who 
.init  might  lawfully 
,w    'I'lio  furnishing 
the  statute,  is  eom- 
•11  purehased  by  an- 
suanee  of  such  pur- 
cia'i  who  was  in  the 
;he  time  of  his  pur- 
:)!•  a  patient,  ami  for 
held,  in  the  absence 
i-esumption  that   the 


tate,  19  Conn.  477:  State 
V.  State,  Ih.  80;  Seltz  v- 


The  intent  of  these  statutes  is  to  furnish  redress  ftud 
compensation  to  innocent  sutlercrs  from  the  consequences 
of  the  sale  of  iiito.xicnting  li(|Uors  ;  and,  therefore,  if  a  i>er- 
son  has  by  iiis  acts  and  conduel  voluntarily  and  knowingly 
encouraged  and  contributed  to  bring  about  such  a  condi- 
tion in  another,  he  can  not  be  permitted  to  conii)lain  of  any 

rongs  which  he  may  sutler  at  the  hands  of  one  while  in  a 
state    which    he   has  assisted    to   produce.     Therefore  the 
seller  would  not  be  protected  from  the  consecpiences  of  his 
own  actions,  if  he  should  receive  injury  at  the  hands  of  one 
of  his    intoxicated   customers.     On  the   same    •>  inciple,  a 
wife  suing  for   injury    to  her  means  of  .si  ppori,  may   be 
estopped  by  her  acts  from  recovering  any  damages  lor  an 
injury  to  which  she  may  have  contributed. '^"^    Therefore,  iu 
an  action  by  the  wife,  if  it  be  proved  that  sho  voluntarily 
bought  li(iuors  of  the  defendant  to  be  drunk  as  a  beverage 
by  herself  and  her  husband,  .she  can  not  be  considered  a.s 
an  innocent  sullerer  from  the  efl'ects  of  intoxicating  liquors, 
if  iiijured  by  him  while  intoxicated,  and  will  not  be  enti- 
tled to  the  protection  of  the  statute.     But  the  purchase  by 
her  of  li(pior  lor  the  use  of  her  husband  at  home,  in  order 
to  prevent  him  from  squandering  time  aud  money  at  saloon s,^ 
is  not  such  a  complicity  on  her  part  as  to  bar  her  recovery 
for  such  injuries.^"  The  fact  that  the  wife  accompanied  her 
husband  to  various  places  and  gatherings,  and  dr«nk  liquors 
with  him,  and  that  the  husband  kept  liquors  in  his  home 
and  drank  the  same  at  home  with  the  wife's  knowledge  and 
approval,  and  that  all  of  such  drinking  on  the  part  of  her 
husband  was  with  her  knowledge  and  consent,  is  proper  to 
be  considered  by  the  jury  on  the  question  of  damages,  es- 
pecially as  the  statute  allows  exemplary  damages.    But  such 
facts  do  not  constitute  a  bar  to  the  action, *'>*  and  the  wife 
may  prove  that  her  husband  compelled  her  to  attend  such 

iM  Kearney  v.  Fitzgerald,  Supreme  Court  of  Iowa,  not  yet  reporteil: 
Kngleken  v.  Hilger,  75. 
iM  Kearney  v.  Fitzgerald,  supra, 
IM  ITackett  v.  Smelsley,  77  111.  109. 


INTOXICATKO   I.IQ1.0B8. 

■.t«,l  to  show  the  whole  circum- 
nlacc.,  and  may  he  l'»™"f  *,'°  '  °f  her  conauet.     And 

Itance,  of  the  «-;/l"i:rw«l  •>»'*■'""'*"'' 
where  the  plaint.ft's  hu*and J-a^  ^  ^^  ,,y  ,^, 

and  »he  had  forbidden  t^"-^/  J^  „„«„»  »he  went  to 
defendant,  but  a  day  "^W^^'y  with  her  husband,  and 
the  defendant',  '"'o™ ,'"  HSalt  to  sell  him  all  the 
i„  Ms  presenee  directed  *->  ^rfen^^t  ^^^^  ^^^^  ^,_^ 

„,„or  he  asked  for  ■' «l.^°Jf  ;Xonduct  was  that  the 
only  reasonable  mfercnee  f'»»  J^"  ,,„,b,„d,  and  that 
plaLiff  aetedunder   heeoe,    onon>e  ^^^^^  ^^^^  ^^^.^ 

L  jury  had  a  right  to  --"^  *^^*;,  „,  „ot  acting  vol- 
inference,  and  there  ore  k|.cw  that  sh  ^^^^^  ^^^^  ^^^ 

„„tarily.'»     In  a  Now  Yo  k  '^^  to  drive  to  a 

plaintifl-s  allowing  h.s  son  to  take  n  ^^  i„„,„,,e„te 

neighbor's,  though  knowu.g  the  s°«  t  ^^  ^^  ^^,.^^^ 

habits,  was  not  such  «"«— ^^Tf,  l^orsc,  where  the 
his  right  of  action  fo  '^'^'J'°^  ,ic„„r,  and,  wlnl" 
rdrttsCanre.trt''U  so  .olenUy  that  .t 

156  jewettv.Wanshura,  supra. 
r,7Bertholf  v.0-Beilly,8Ui)m. 


553 


whole  cii-cuni- 
oonduct.     And 
itual  drunkard, 
to  him  by  the 
ice  she  went  to 
51-  husband,  and 
jell  hun  all  the 
a  case,  that  the 
vet  was  that  the 
usband,  and  that 
ndant  drew  this 
s  not  acting  vol- 
.s  held  that  the 
rse  to  drive  to  a 
)e  of  intemperate 
;ence  as  to  defeat 
horse,  where  the 
liquor,  and,  whib' 
,  violently  that  it 


\* 


I 


